easement or servitude legal
DESCRIPTION
civil law propertyTRANSCRIPT
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Chapter 2
LEGAL EASEMENTS
Section 1. General Provisions
Art. 634. Easements imposed by law have for their object either
public use or the interest of private persons. (549)
Art. 635. All matters concerning easements established for public or
communal use shall be governed by the special laws and
regulations relating thereto, and, in the absence thereof, by the
provisions of thisTitle. (550)
Art. 636. Easements established by law in the interest of private
persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified by agreement of the interested
parties, whenever the law does not prohibit it or no injury is suffered
by a third person. (551a)
Legal Easement, In General
The Civil Code provides for the following classes of private legal
easements:
(a) Easement relating to waters (Arts. 637-648, NCC);
(b) Easement of right of way (Arts. 649-657, NCC);
(c) Easement of party wall (Arts. 658-666, NCC);
(d) Easement of light and view (Arts. 667-673, NCC);
(e) Easement of drainage of buildings (Arts. 674-676, NCC);
(f) Easement of distances (Arts. 677-681, NCC);
(g) Easement of nuisance (Arts. 682-683, NCC); and
(h) Easement of lateral and subjacent support. (Arts. 684-687, NCC)
Section 2. Easements Relating to Waters
Art. 637. Lower estates are obliged to receive the waters which
naturally and without the intervention of man descend from the
higher estates, as well as the stones or earth which they carry with
them.
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The owner of the lower estate cannot construct works which will
impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (552)
Art. 638. The banks of rivers and streams, even in case they are of
private ownership, are subject throughout their entire length and
within a zone of three meters along their margins, to the easement of
public use in the general interest of navigation, floatage, fishing and
salvage.
Estates adjoining the banks of navigable or floatable rivers are,
furthermore, subject to the easement of towpath for the exclusive
service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Art. 639. Whenever for the diversion or taking of water from a river or
brook, or for the use of any other continuous or discontinuous
stream, it should be necessary to build a dam, and the person who is
to construct it is not the owner of the banks, or lands which must
support it, he may establish the easement of abutment of a dam,
after payment of the proper indemnity. (554)
Art. 640. Compulsory easements for drawing water or for watering
animals can be imposed only for reasons of public use in favor of a
town or village, after payment of the proper indemnity. (555)
Art. 641. Easements for drawing water and for watering animals carry
with them the obligation of the owners of the servient estates to
allow passage to persons and animals to the place where such
easements are to be used, and the indemnity shall include this
service. (556)
Art. 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the
waters may filter or descend. (557)
Art. 643. One desiring to make use of the right granted in the
preceding article is obliged:
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
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(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (558)
Art. 644. The easement of aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing. (559)
Art. 645. The easement of aqueduct does not prevent the owner of
the servient estate from closing or fencing it, or from building over
the aqueduct in such manner as not to cause the latter any
damage, or render necessary repairs and cleanings impossible.
(560)
Art. 646. For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though the flow of the
water may not be continuous, or its use depends upon the needs of
the dominant estate, or upon a schedule of alternate days or hours.
(561)
Art. 647. One who for the purpose of irrigating or improving his
estate, has to construct a stop lock or sluice gate in the bed of the
stream from which the water is to be taken, may demand that the
owners of the banks permit its construction, after payment of
damages, including those caused by the new easement to such
owners and to the other irrigators. (562)
Art. 648. The establishment, extent, form and conditions of the
servitudes of waters, to which this section refers, shall be governed
by the special laws relating thereto insofar as no provision therefor is
made in this Code. (563a)
Easement Relating to Waters
The following are the easements relating to waters:
(1) Easement of drainage of waters (Art. 637, NCC; Art. 50,Water
Code)
(2) Easement for public use (Art. 638, NCC; Art. 51, Water Code);
(3) Easement for drawing waters (Arts. 640-641, NCC);
(4) Easement of abutment of dam (Art. 639, NCC);
(5) Easement of aqueduct (Arts. 642-646, NCC).
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Easement of Drainage of Waters
An easement exists when, based on the physical condition of two estates,
waters descend naturally and without the intervention of man from a
higher estate (the dominant estate) to a lower estate (the servient estate).
This is called “easement of drainage of waters.”
In this kind of easement, the lower estate is obliged to receive the waters
which naturally and without the intervention of man flow from the higher
estates, as well as the stones or earth which they carry with them.
Such being the case, the owner of the lower estate may not construct
works, such as dikes, walls or hedges, which will block or impede the flow
of waters, unless he provides an alternative method of drainage. The
owner of the higher estate, in turn, may not construct works which will
increase the burden or increase the natural flow.
The owner of the higher estate shall also have the right to resort to artificial
means for the purpose of draining waters from higher to lower estates but
in the exercise of such right, he is obliged:
(1) to select the routes and methods of drainage that will cause the
minimum damage to the lower lands; and
(2) to pay just compensation to the owner of the lower estate.
Since the enjoyment of this servitude does not depend upon acts of man
because the descent of water from the higher to the lower estates is due
to the force of gravity, this easement must be classed among the
continuous ones and it is subject to extinction by non-user for a period of
ten yearscomputed from the day on which an act contrary to the
easement took place, such as building of dikes.
Easement of Public Use
The banks or rivers and streams and the shores of the seas and
lakesthroughout their entire length and within a zone of
three (3) meters in urban areas,
twenty (20) meters in agricultural areas and
forty (40) meters in forest areas, along their margins,.
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are subject to the easement of public use in the interest of
recreation,navigation, floatage, fishing and salvage.
However, no person shall be allowed to stay in this zone longer than what
is necessary for recreation, navigation, floatage, fishing or salvage or to
build structures of any kind.
Note that in connection with this kind of easement, the provision of the
first paragraph of Article638 of the New Civil Code was modified by Article
51 of the Water Code of the Philippines (P.D. No. 1067).
Easement For Drawing Waters
The compulsory easement for drawing waters or for watering animals can
be imposed only for reasons of public use in favor of a town or village,
after payment of the proper indemnity. This kind of easement, upon its
establishment, carries with it the easement of right of way.
In other words, the owner of the servient estate shall also have the
obligation to allow passage to persons and animals to the place where
the easement is to be used. As such, the indemnity to be paid for the
easement for drawing waters or for watering animals must include
indemnity for the easement of right of way.
Easement of Abutment of Dam
Whenever it is necessary to build a dam for the purpose of diverting or
taking waters from a river or brook, or for the use of any other continuous
or discontinuous stream, and the person who is to construct it is not the
owner of the banks or of the land on which must support it, he may
establish an easement of abutment(support) of dam only upon payment
of the proper indemnity to the owner of the affected estates
Easement of Aqueduct(Cannal or Channel)
Requisites
If a person wishes to use upon his estate any water of which hecan
dispose, he shall have the right to make it flow through
interveningestates.This is called “easement of aqueduct.”In order for
thiseasement to be established, the following requisites must concur:
(1) That he who wants to establish the easement of aqueductmust
be able to prove that he can dispose of the water;
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(2) He must also prove that it is sufficient for the use for whichit is
intended;
(3) The proposed right of way is the most convenient and the least
onerous to third persons affected; and
(4) He must indemnify the owners of the servient estates(intervening
estates), as well as the owners of the lowerestates upon which the
waters may filter or descend
Article 47 of the Water Code of the Philippines likewise provides that
“when the use, conveyance or storage of water results in damage to
another, the person responsible for the damageshall pay compensation.”
This kind of easement, if established for private interest, may not be
imposed on buildings, courtyards, annexes, or outhouse, or on orchards or
gardens already existing
Right of Owners of Servient Estate
The existence of an easement of aqueduct does not, however, curtail the
right of the owner of the servient estate to close or fence his estate but he
may not refuse the entry of the holder of the easement on his estate if the
purpose of such entry is the cleaning, repair or replacement of the
aqueduct or removal of any obstruction therefrom.
The existence of such easement does not likewise prevent the owner of
the servient estate from building over this aqueduct provided that the
same does not cause damage to the aqueduct or render the necessary
repairs and cleanings thereon impossible.
Nature of Easement
For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the dominant estate, or
upon a schedule of alternate days or hours. Hence, an easement of
aqueduct may be acquired either by title or by prescription
Section 3. Easement of Right of Way
Art. 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other
immovable pertaining to other persons and without adequate outlet
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to a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use
may be continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the damage caused
to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering
of its crops through the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage caused by
such encumbrance.
This easement is not compulsory if the isolation of the immovable is
due to the proprietor’s own acts. (564a)
Art. 650. The easement of right of way shall be established at the
point least prejudicial to the servient estate, and, insofar as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest. (565)
Art. 651. The width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time. (566a)
Art. 652. Whenever a piece of land acquired by sale, exchange or
partition, is surrounded by other estates of the vendor, exchanger, or
co-owner, he shall be obliged to grant a right of way without
indemnity.
In case of a simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article, if it is the land of the
grantor that becomes isolated, he may demand a right of way after
paying an indemnity. However, the donor shall not be liable for
indemnity. (n)
Art. 654. If the right of way is permanent, the necessary repairs shall
be made by the owner of the dominant estate. A proportionate
share of the taxes shall be reimbursed by said owner to the
proprietor of the servient estate. (n)
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Art. 655. If the right of way granted to a surrounded estate ceases to
be necessary because its owner has joined it to another abutting on
a public road, the owner of the servient estate may demand that the
easement be extinguished, returning what he may have received
by way of indemnity.
The interest on the indemnity shall be deemed to be in payment of
rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate.
Whenever it is necessary to establish a compulsory easement of the
right of way or for a watering place for animals, the provisions of this
Section and those of Articles 640 and 641 shall be observed. In this
casethe width shall not exceed 10 meters. (570a)
Easement of Right of Way
Concept
Servitudes of right of way are an ancient concept, which date back to
the iter, actus, and via of the Romans. They are demanded by necessity,
that is, to enable owners of isolated estates to make full use oftheir
properties, which lack of access to public roads has denied them.
The essence of this easement (“servidumbre de paso”) lies in the power of
the dominant owner to cross or traverse the servient tenement without
being prevented or disturbed by its owner. As a servitude, it is a limitation
on the servient owner’s rights of ownership, because it restricts his right to
exclude others from his property. But such limitation exists only when the
dominant owner actually crosses, or passes over the servient estate;
because when he does not, the servient owner’s right of exclusion is
perfect and undisturbed. Since the dominant owner cannot be
continually and uninterruptedly crossing the servient estate, but can do so
only at intervals, the easement is necessarily of an intermittent or
discontinuous nature.
Because possession of a right consists in the enjoyment of that right and to
enjoy a right is to exercise it, it follows that the possession (enjoyment or
exercise) of a right of way is intermittent and discontinuous.
From this premise, it is inevitable to conclude, with Manresa and Sanchez
Roman, that such easement cannot be acquired by acquisitive
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prescription (adverse possession) because the latter requires that the
possession be continuous or uninterrupted
Manner of Acquisition; Requisites of Compulsory Right of Way
An easement of right of way may only be acquired by virtue of a title,
either voluntarily (Arts. 688-693) or compulsorily (Arts. 649-657).
A voluntary easement of right of way is constituted by covenant
(contract) and does not, therefore, require that the dominant estate be
isolated and without an adequate outlet to a public highway.
If an estate, however, is so isolated and without an adequate outlet to a
public highway, the grant of easement of right of way is compulsory and
hence, legally demandable, subject to indemnity and the concurrence of
other conditions enumerated under Articles 649 and 650 of the New Civil
Code.
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, Inc.,127 the
Supreme Court held that a compulsory easement of right of way cannot
be obtained without the presence of four (4) requisites provided for in
Articles 649 and 650 of the Civil Code, which the owner of the dominant
tenement must establish, to wit:
(1) That the dominant estate is surrounded by other immovable and
has no adequate outlet to a public highway(Art. 649, par. 1);
(2) After payment of proper indemnity(Art. 649, par. 1, end);
(3) That the isolation was not due to acts of the proprietor of the
dominant estate(Art. 649, par. 4); and
(4) That the right of way claimed is at the point least prejudicial to
the servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest. (Art. 650)
By its very nature, and when considered with reference to the obligations
imposed on the servient estate, an easement involves an abnormal
restriction on the property rights of the servient owner and is regarded as
a charge or encumbrance on the servient estate. Thus, it is incumbent
upon the owner of the dominant estate to establish by clear and
convincing evidence the presence of all the preconditions before his
claim for easement of right of way be granted. Stated otherwise, the
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burden of proving the existence of the prerequisites to validly claim a
compulsory right of way lies on the owner of the dominant estate.
Isolation of the Dominant Estate
In order to entitle the owner of the dominant estate to demand for a
compulsory right of way, it is required that his estate must be “surrounded
by other immovables pertaining to other persons.”
The estate, however, need not be totally landlocked as the isolationof the
dominant estate is also dependent on the particular need of
thedominant owner. What is important to consider is whether or not a right
of way is necessary to fill a reasonable need therefor by the owner.
Thus, as Manresa had pointed out, if the passageway consists of
an“inaccessible slope or precipice,”it is as if there is no passageway, that
is, one that can sufficiently fulfill the dominant owner’s
necessities,although by the existence of that passageway the property
cannot betruly said that the property is isolated.
So also, while an existing rightof way may have proved adequate at the
start, the dominant owner’sneed may have changed since then, for
which Article 651 of the Codeallows adjustments as to width.
But the law makes it amply clear that an owner cannot, by his own act,
isolate his property from a public highway and then claim an easement of
way through an adjacent estate. In short, the claimant of a right of way
must not himself procured the isolation of his property.
According to the last paragraph of Article 649, the “easement is not
compulsory if the isolation of the immovable is due to the proprietor’s own
acts.”
Thus, when the claimant of a right of way had already beengranted an
adequate access to the public highway through another estatebut the
same was no longer in use because he himself had closed it offby
erecting a stonewall on his lot at the point where such
passagewaybegan,he cannot demand for a compulsory right of way in
an alternativelocation.
Inadequacy of the Outlet to Public Highway
To be entitled to a compulsory right of way, it is necessary that the estate
of the claimant of a right of way must be isolated and without adequate
outlet to a public highway.The true standard for the grant of the legal right
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is “adequacy.” Hence, when there is already an existing adequate outlet
from the dominant estate to a public highway, even if the said outlet, for
one reason or another, be inconvenient, the need toopen up another
servitude is entirely unjustified
Of course, the question of when a particular passage may be said to be
“adequate” depends on the circumstances of each case. Manresa,
however, says: “In truth, not only the estate which absolutely does not
possess it should be considered in this condition, but also that which does
not have one sufficiently safe or serviceable; an estate bordering a public
road through an inaccessible slope or precipice, is in fact isolated for all
the effects of the easement requested by its owner.
On the other hand, an estate which for any reason has necessarily lost its
access to a public road during certain periods of the year is in the same
condition. There are some who propound the query as to whether the
fact that a river flows between the estate and the public road should be
considered as having the effect of isolating the estate. If the river may be
crossed conveniently at all times without the least danger, it cannot be
said that the estate is isolated; in any other case, the answer is in the
affirmative.
In order to justify the imposition of the servitude of right of way, there must
be a real, not a fictitious or artificial necessity for it. Mere convenience for
the dominant estate is not what is required by law as the basis for setting
up a compulsory easement. Even in the face of a necessity, if it can be
satisfied without imposing the servitude, the same should not be imposed.
This easement can also be established for the benefit of a tenement with
an inadequate outlet, but not when the outlet is merely inconvenient.
Thus, when a person has already established an easement of this nature in
favor of his tenement, he cannot demand another, even if the first
passage has defects which make passage impossible, if those defects
can be eliminated by proper repairs
At the Point Least Prejudicial.
Article 650 of the New Civil Code explicitly states that the easement of
right of way shall be established at the point least prejudicial to the
servient estate and, insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the shortest.
The criterion of least prejudice to the servient estate must prevail over the
criterion of shortest distance although this is a matter of judicial
appreciation.
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While shortest distance may ordinarily imply least prejudice, it is not always
so as when there are permanent structures obstructing the shortest
distance; while on the other hand, the longest distance may be free of
obstructions and the easiest or most convenient to pass through. In other
words, where the easement may be established on any of several
tenements surrounding the dominant estate, the one where the way is
shortest and will cause the least damage should be chosen.
However, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used,
even if it will not be the shortest. This is the test.
Hence, as between a right of way that would demolish a store of strong
materials to provide egress to a public highway, and another right of way
which although longer will only require an avocado tree to be cut down,
the second alternative should be preferred
Payment of Indemnity
Prepayment, as we used the term means the delivery of the proper
indemnity required by law for the damage that might be incurred by the
servient estate in the event the legal easement is constituted. The fact that
a voluntary agreement upon the extent of compensation cannot be
reached by the parties involved, is not an impediment to the
establishment of such easement.
Precisely, the action of the dominant estate against the servient estate
should include a prayer for the fixing of the amount which may be due
from the former to the latter
The extent of the indemnity, should the easement be established in such a
manner that its use may be continuous for all the needs of the dominant
estate, thereby establishing a permanent passage, shall consist of the
value of the land occupied and the amount of the damage caused to
the servient estate
And in case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the indemnity
shall consist in the payment of the damage caused by such
encumbrance.
However, whenever a piece of land which is acquired by sale, exchange
or partition is surrounded by other states of the vendor, exchanger or co-
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owner,the owner is entitled to a grant of right of way without indemnity.
Such grant of right of way is deemed a tacit condition of the contract
and essentially voluntary in character inasmuch as the estate is
surrounded by the estate of others through the will of the parties.
But if the owner acquires his land by way of a simple donation, there is no
such tacit condition because the donor receives nothing from the donee.
In this latter case, therefore, the donee can only demand for a right of way
after payment of the proper indemnity
Width of the Easement
Article 651 of the New Civil Code provides that “The width of the
easement of right of way shall be that which is sufficient for the needs of
the dominant estate, and may accordingly be changed from time to
time.”
This is taken to mean that under the law, it is the needs of the dominant
property which ultimately determine the width of the passage. And these
needs may vary from time to time
Who May Demand For Compulsory Right of Way
Under Article 649 of the New Civil Code, it is the owner, or any person who
by virtue of a real right may cultivate or use any immovable surrounded
by other immovable pertaining to other persons, who is entitled to
demand a right of way through the neighboring estates.
Thus, in the case of Spouses Dela Cruz v. Ramiscal, the Court held that the
petitioners therein are not entitled to demand for a compulsory right of
way because they are not the owners of the supposed dominant estate
and neither do they possess a real right to use such property.
While a usufructuary is entitled to demand a right of way pursuant to
Article 649, a mere lessee does not enjoy the same right. With respect to
the latter, his action is against the lessor who is bound to maintain him in
the enjoyment of the property.
Extinguishment of Right of Way
If the right of way is no longer necessary because the owner of the
dominant estate has joined it to another abutting on a public highway
and such public highway substantially meets the needs of the dominant
estate, the owner of the servient estate may demand for the release of his
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estate from the servitude by returning what he may have received by way
of indemnity without interest.
The interest on the indemnity shall, instead, be considered as payment for
the use of the easement. The same rule shall be applied in cases where a
new road is opened thereby giving access to the isolated estate.
Note, however, that the extinguishment of the right of way in the
foregoing manner does not take place ipso jure (automatic).The owner of
the servient estate must ask for the release of his estate from the servitude
upon the return of the indemnity he received.
Section 4. Easement of Party Wall
Art. 658. The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances and customs insofar
as they do not conflict with the same, and by the rules of co-
ownership. (571a)
Art. 659. The existence of an easement of party wall is presumed,
unless there is a title, or exterior sign, or proof to the contrary:
(1) In dividing walls of adjoining buildings up to the point of
common elevation;
(2) In dividing walls of gardens or yards situated in cities,
towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands. (572)
Art. 660. It is understood that there is an exterior sign, contrary to the
easement of party wall:
(1) Whenever in the dividing wall of buildings there is a window
or opening;
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or
projects outward;
(3) Whenever the entire wall is built within the boundaries of
one of the estates;
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(4) Whenever the dividing wall bears the burden of the binding
beams, floors and roof frame of one of the buildings, but not
those of the others;
(5) Whenever the dividing wall between courtyards, gardens,
and tenements is constructed in such a way that the coping
sheds the water upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has
stepping stones, which at certain intervals project from the
surface on one side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed.
In all these cases, the ownership of the walls, fences or hedges shall
be deemed to belong exclusively to the owner of the property or
tenement which has in its favor the presumption based on any one
of these signs.(573)
Art. 661. Ditches or drains opened between two estates are also
presumed as common to both, if there is no title or sign showing the
contrary.
There is a sign contrary to the part-ownership whenever the earth or
dirt removed to open the ditch or to clean it is only on one side
thereof, in which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior sign in its
favor. (574)
Art. 662. The cost of repairs and construction of party walls and the
maintenance of fences, live hedges, ditches, and drains owned in
common, shall be borne by all the owners of the lands or tenements
having the party wall in their favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from contributing to
this charge by renouncing his part-ownership, except when the
party wall supports a building belonging to him. (575)
Art. 663. If the owner of a building, supported by a party wall desires
to demolish the building, he may also renounce his part-ownership
of the wall, but the cost of all repairs and work necessary to prevent
any damage which the demolition may cause to the party wall, on
this occasion only, shall be borne by him. (576)
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Art. 664. Every owner may increase the height of the party wall,
doing so at his own expense and paying for any damage which
may be caused by the work, even though such damage be
temporary.
The expenses of maintaining the wall in the part newly raised or
deepened at its foundation shall also be paid for by him; and, in
addition, the indemnity for the increased expenses which may be
necessary for the preservation of the party wall by reason of the
greater height or depth which has been given it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his own
expense and, if for this purpose it be necessary to make it thicker,
he shall give the space required from his own land. (577)
Art. 665. The other owners who have not contributed in giving
increased height, depth or thickness to the wall may, nevertheless,
acquire the right of part-ownership therein, by paying proportionally
the value of the work at the time of the acquisition and of the land
used for its increased thickness. (578a)
Art. 666. Every part-owner of a party wall may use it in proportion to
the right he may have in the co-ownership, without interfering with
the common and respective uses by the other co-owners. (579a)
Easement of Party Wall
Nature of Party Wall
While our Civil Code recognizes the existence of co-ownership in a party
wall, it is considered more of a servitude. This is to be seen in the way the
concept is treated under the Civil Code — it is discussed under the title on
easement or servitude and not under the title on coownership.
In ordinary co-ownership, none of the co-owners may do anything on the
co-owned property for his own exclusive benefit because he would be
impairing the rights of others. But in a party wall, there is no such juridical
limitation upon the action of the owner.
And as explained by Senator Tolentino, when the law grants to the owners
of a party wall the right to make in it works for the exclusive benefit of the
person making them, and not in the interest of the others, such grant
cannot be by mere title of co-ownership, but by virtue of a right of
servitude
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Presumption of Existence of Easement of Party Wall
The law presumes the existence of an easement of party wall in the
following cases:
(1) In dividing walls of adjoining buildings up to the point of common
elevation;
(2) In dividing walls of gardens or yards situated in cities, towns or
rural communities; and
(3) In fences, walls and live hedges dividing rural lands.
This presumption will not, however, apply if:
(1) there is title to the contrary;
(2) there is an exterior sign to the contrary; and
(3) there is proof to the contrary.
It is understood, however, that there exists an exterior sign contrary to the
easement of party wall in the following instances:
(1) Whenever in the dividing wall of buildings there is a window or
opening;
(2) Whenever the dividing wall is, on one side, straight and plumb on
all its facement, and on the other, it has similar conditions on the
upper part, but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the boundaries of one of
the estates;
(4) Whenever the dividing wall bears the burden of the binding
beams, floors and roof frame of one of the buildings, but not those
of the others;
(5) Whenever the dividing wall between courtyards, gardens, and
tenements is constructed in such a way that the coping sheds the
water upon only one of the estates;
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(6) Whenever the dividing wall, being built of masonry, has stepping
stones, which at certain intervals project from the surface on one
side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin others
which are not inclosed.
In all the foregoing cases, the ownership of the walls, fences or hedges
shall be deemed to belong exclusively to the owner of the property or
tenement which has in its favor the presumption based on any one of the
these signs.
With respect to ditches or drains opened between two estates, there is
also a presumption that they are common to both estates unless there is a
sign or title to the contrary. There is a sign contrary to the part-ownership
whenever the earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior sign in its favor.
Rights and Obligations of Each Co-Owner of Party Wall
Right to Use
Every part-owner of a party wall may use it in proportion to the right he
may have in the co-ownership even without the consent of the other
owners so long as he does not interfere with the common and respective
uses by the other co-owners
Right to Increase Height of Party Wall
Every part-owner of a party has the right to increase the height of the
party wall subject to the following conditions:
(1) the same shall be done at his expense;
(2) he shall pay for any damage which may be caused by his work,
even though such damage may be temporary; and
(3) if the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his own
expense, and, if for this purpose it be necessary to make it thicker,
he shall give the space required from his own land
The co-ownership is maintained up to the point where the original wall
extended. But with respect to the additional height, the same shall be
19
exclusively owned by the part-owner at whose instance the party wall
was raised. As a consequence, the expenses in maintaining the additional
height, as well as the increase in expenses which may be necessary for
the preservation of the party wall by reason of the greater height, shall be
borne by him.
The other owners may, however, acquire a proportionate share in the
raised party wall by paying proportionately the value of the work at the
time of the acquisition and of the land used for its increased thickness, in
which case, all shall bear the expenses of maintaining the additional
height in proportion to their respective interest in it.
Repairs and Maintenance of Party Wall
The cost of repairs and construction of party walls and the maintenance
of fences, live hedges, ditches, and drains owned in common, shall be
borne by all the owners of the lands or tenements having the party wall in
their favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from contributing to this
charge by renouncing his part-ownership, except when the party wall
supports a building belonging to him.171 In case where the party wall
supports a building, the owner of such building may renounce his part
ownership of the party wall if he will demolish the building
But the cost of all repairs and work necessary to prevent any damage
which the demolition may cause to the party wall on this occasion shall
be borne by him
Section 5. Easement of Light and View
Art. 667. No part-owner may, without the consent of the others, open
through the party wall any window or aperture (opening) of any
kind. (580)
Art. 668. The period of prescription for the acquisition of an easement
of light and view shall be counted:
(1) From the time of the opening of the window, if it is through a party
wall; or
(2) From the time of the formal prohibition upon the proprietor of the
adjoining land or tenement, if the window is through a wall on the
dominant estate.
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Art. 669. When the distances in Article 670 are not observed, the
owner of a wall which is not a party wall, adjoining a tenement or
piece of land belonging to another, can make in it openings to
admit light at the height of the ceiling joists or immediately under the
ceiling, and of the size of thirty centimeters square, and, in every
case, with an iron grating imbedded in the wall and with a wire
screen.
Nevertheless, the owner of the tenement or property adjoining the
wall in which the openings are made can close them should he
acquire part-ownership thereof, if there be no stipulation to the
contrary.
He can also obstruct them by constructing a building on his land or
by raising a wall thereon contiguous to that having such openings,
unless an easement of light has been acquired. (581a)
Art. 670. No windows, apertures, balconies, or other similar
projections which afford a direct view upon or towards an adjoining
land or tenement can be made, without leaving a distance of two
meters between the wall in which they are made and such
contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of sixty
(60) centimeters.
The nonobservance of these distances does not give rise to
prescription. (582a)
Art. 671. The distance referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall
when the openings do not project, from the outer line of the latter
when they do, and in cases of oblique views from the dividing line
between the two properties. (583)
Art. 672. The provisions of Article 670 are not applicable to buildings
separated by a public way or alley, which is not less than three
meters wide, subject to special regulations and local ordinances.
(584a)
Art. 673. Whenever by any title a right has been acquired to have
direct views, balconies or belvederes overlooking an adjoining
property, the owner of the servient estate cannot build thereon at
21
less than a distance of three meters to be measured in the manner
provided in Article
671. Any stipulation permitting distances less than those prescribed
in Article 670 is void. (585a)
If the easement is both continuous and apparent, it may beacquired by
virtue of prescription within a period of ten (10) years.The commencement
of the ten-year period of prescription will dependon whether the
easement is positive or negative, as follows:
(a) If the easement is positive, the 10-year period is countedfrom the
day on which the owner of the dominant estate,or the person who
may have made use of the easement,commenced to exercise it
upon the servient estate;or
(b) If the easement is negative, the 10-year period is countedfrom
the day on which the owner of the dominant estateforbade, by an
instrument acknowledged before a notarypublic, the owner of the
servient estate, from executing anact which would be lawful without
the easement.
The foregoing principles are best explained if we are goingto consider the
acquisition of easement of light and view throughprescription. At the
outset, it must be pointed out that a building mayreceive light in various
manners in the enjoyment of an easement oflight, because the openings
through which the light penetrates may bemade in one’s own wall, in the
wall of one’s neighbor, or in a party wall.
The legal doctrine applicable in either one of these cases is
different,owing to the fact that, although anyone may open windows in
his ownwall, no one has a right to do so in the wall of another without
theconsent of the owner, and it is also necessary, in accordance with
Article667 of the New Civil Code, to obtain the consent of the other co-
ownerwhen the opening is to be made in a party wall
When a person opens windows in his own building he does nothing more
than exercise an act of ownership inherent in the right of property, which,
under Article 428 of the New Civil Code, empowers him to deal with his
property as he may see fit, with no limitations other than those established
by law. By reason of the fact that such an act is performed wholly on a
thing which is wholly the property of the one opening the window, it does
not in itself establish any easement, because the property is used by its
owner in the exercise of dominion,and not as the exercise of an
22
easement: “For a man should not usethat which belongs to him as if it
were a service only, but as his ownproperty.”
Coexistent with this right is the right of the owner of theadjacent property
to cover up such windows by building on his ownland or raising a wall
contiguously to the wall in which the windowsare opened, by virtue of the
reciprocity of rights which should existbetween abutting owners, and
which would cease to exist if one coulddo what he pleased on his
property and the other could not do the sameon his.
Hence, it is that the use of the windows opened in a wall of one’sown
property, in the absence of some covenant or express agreement tothe
contrary, is regarded as an act of mere tolerance on the part of theowner
of the abutting property, and does not create any right to maintainthe
windows to the prejudice of the latter.
The mere toleration of suchan act does not imply on the part of the
abutting owner a waiver of hisright to freely build upon his land as high as
he may see fi t, nor does itavail the owner of the windows for the effects
of possession, because itis a mere possession at will.
From the foregoing, it follows that the easement of light withrespect to the
openings made in one’s own edifice does not consistprecisely in the fact
of opening them or using them, inasmuch as they may be covered up at
any time by the owner of the abutting property,and, as Manresa says in
his commentaries on the Civil Code, “thereis no true easement as long as
the right to impede its use exists.”
Theeasement really consists of in prohibiting or restraining the
adjacentowner from doing anything which may tend to cut off or
interrupts the light; in short, it is limited to the obligation of not impeding
the light(ne luminibusofficiatur). The latter coincides in its effects, from
thispoint of view, with the obligation of refraining from increasing
theheight of a building (altius non tollendi), which, although it constitutesa
special easement, has for its object, at times, the prevention of
anyinterruption of the light enjoyed by the adjacent owner.
In this sense,it has been commented that an easement of light and view
necessarilyincludes an easement not to build higher (altius non tollendi).
Thesetwo easements necessarily go together because an easement of
lightand view requires that the owner of the servient estate shall not
buildto a height that will obstruct the window. They are, as it were, the
twosides of the same coin. While an easement of light and view is
positive,that of altius non tollendiis negative.
23
It will thus be observed thatthe owner of the servient estate subject to
such easement is under noobligation whatsoever to allow anything to be
done on his tenement,nor to do anything there himself, but is simply
restrained from doinganything thereon which may tend to cut off the light
from the dominantestate, which he would undoubtedly be entitled to do
were it not for theexistence of the easement. If, then, the first condition is
that which ispeculiar to positive easements, and the second condition
that which ispeculiar to negative easements.
Consequently, the easement of lights inthe case of windows opened in
one’s own wall is of a negative character, and, as such, cannot be
acquired by prescription under Article 621 ofthe New Civil Code, except
by counting the time of possession from thedate on which the owner of
the dominant estate may, by an instrumentacknowledged before a
notary public, have prohibited the owner of theservient estate from doing
something which it would be lawful for himto do were it not for the
easement
If the window, on the other hand, is opened in a party wall, and notin a
wall the sole and exclusive property of the owner of the
dominanttenement, the easement of lights is positive and the 10-year
period ofprescription commences from the time of the opening of the
window.
The reason for this is because no part owner can, without the consentof
the other, make in a party wall a window or opening of any kind,
asprovided in Article 667 of the New Civil Code. Hence, the very factof
making such openings in such a wall might, therefore, be the basisfor the
acquisition of a prescriptive title without the necessity of anyactive
opposition, because it always presupposes the express or impliedconsent
of the other part owner of the wall, which consent, in turn,implies the
voluntary waiver of the right of such part owner to opposethe making of
such openings or windows in such a wall.
The same rule will apply if the window is opened on the wallbelonging to
one’s neighbor. The 10-year prescriptive period commencesfrom the time
of the opening of the window. Stated otherwise, if anyoneshall open a
window in the wall of his neighbor, through which thelight enters his house,
by this sole fact he shall acquire a prescriptivetitle to the easement of
light, if the time fixed by law (ten years) expireswithout opposition on the
part of the owner of the wall
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Making an Opening in Party Wall
A part-owner of a party wall may use it even without the consent the
consent of the other owners so long as he does not interfere in the
common and respective uses by the otherco-owners.No part-owner may,
however, make an opening in a partywall without the consent of the
other co-owners.174 If the same is donewithout the consent of the other
co-owners, the latter may demand thatwhat has been done be undone
at the expense of the co-owner whomade such opening.175 But if the
same is done with the consent of theother co-owners, the 10-year period
of prescription for the acquisitionof an easement of light and view shall
commence to run from the timeof the making of such opening
Observance of Certain Distances
The law prohibits the making of windows, apertures, balconies, or other
similar projections which afford a direct view upon or towards an
adjoining land or tenement without leaving a distance of two meters
between the wall in which they are made and such contiguous property.
With respect to the side or oblique views upon or towards
suchconterminous property, the law requires that the distance be sixty
(60)centimeters.
Such distance shall be measured in cases of direct viewsfrom the outer
line of the wall when the openings do not project, fromthe outer line of
the latter when they do, and in cases of oblique viewfrom the dividing line
between the two properties
The foregoing requirement does not apply, however, to
buildingsseparated by a public way or alley, which is not less than three
meterswide, unless there is a special regulation and local ordinance
whichprovides to the contrary
Now, what is the effect of violation of the foregoing distance
requirement? When windows or balconies are opened in violation of the
distance requirement in Article 670 of the Civil Code, the samemay be
ordered closed because they constitute unlawful openings.
The mere making of such openingdoes not result in the running of the 10-
year prescriptive period for theacquisition of an easement of light and
view. Since the easement is anegative one, the 10-year period begins to
run only from the time of theformal prohibition mentioned in Articles 621
and 668 of the New CivilCode.
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Opening Where Distances Not Observed
If a building is right on the boundary line or the distances required in
Article 670 are not observed, the owner of a wall adjoining a tenement or
piece of land belonging to another, which is not a party wall, may not
make an opening in the said wall except if the following conditions are
present:
(1) the opening must not be more than 30 centimeters square and
made at the height of the ceiling joists or immediately under the
ceiling, and with an iron grating imbedded in the wall and with a
wire screen; and
(2) it must be for the purpose of admitting light only and not for the
purpose of view
If these conditions are violated, the ownerof the tenement or property
adjoining the wall may demand for itsclosure or he may compel that the
foregoing requirements be compliedwith. Even in the absence of any
violation, the owner of the adjacentproperty may close the opening
should he acquire part ownership ofthe wall where the opening has been
made, if there be no stipulationto the contrary.
If the owner of the adjacent property is not entitled todemand for the
closure of the said opening because there is no violationof the conditions
outlined in the first paragraph of Article 669 andhe does not acquire part-
ownership of the wall, he may, nonetheless,obstruct the opening by
constructing a building on his land or by raisinga wall thereon contiguous
to that having such opening.
This he cando because it is simply an exercise of his right of ownership
over hisproperty. He may not, however, resort to this remedy if the owner
ofthe wall with the opening has already acquired an easement of
lightpursuant to the manner outlined in Articles 621 and 668 of the
CivilCode.
Section 6. Drainage of Buildings
Art. 674. The owner of a building shall be obliged to construct itsroof
or covering in such manner that the rain water shall fall on his
ownland 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 ofwhom is the owner of the roof. Even if it should fall on
his own land, theowner shall be obliged to collect the water in such
26
a way as not to causedamage to the adjacent land or tenement.
(586a)
Art. 675. The owner of a tenement or a piece of land, subject to
theeasement of receiving water falling from roofs, may build in such
manneras to receive the water upon his own roof or give it another
outlet in accordancewith local ordinances or customs, and in such a
way as not tocause any nuisance or damage whatever to the
dominant estate. (587)
Art. 676. Whenever the yard or court of a house is surrounded
byother houses, and it is not possible to give an outlet through the
house itselfto the rain water collected thereon, the establishment of
an easementof drainage can be demanded, giving an outlet to the
water at the pointof the contiguous lands or tenements where its
egress may be easiest,and establishing a conduit for the drainage in
such manner as to causethe least damage to the servient estate,
after payment of the propertyindemnity. (583)
Easement of Drainage of Buildings
Concept
The easement of drainage of buildings is the right to divert orempty the
rain waters from one’s own roof or shed to the neighbor’sestate either
drop by drop or through conduits
Ownership of Rain Waters
Pursuant to the provisions of the Water Code of the Philippines,rain waters
falling on private lands shall belong to the State. However, many person
who captures or collects water by means of cisterns, tanks orpools shall
have exclusive control over such water and he shall also havethe right to
dispose of the same.
The owner of the land where the rainwaters fall may use the same even
without securing a permit from theNational Water Resources Council but
only for domestic purposes. In cases where the owner of a building does
not intend to collectthe rain waters falling on the roof or covering of his
building, he hasthe obligation to construct the roof or covering of his
building in suchmanner that the rain waters shall fall on his own land or on
street orpublic place, and not on the land of his neighbor, even though
theadjacent land may belong to two or more persons, one of whom is
theowner of the roof.
27
And even if it should fall on his own land, he is alsoobligated to collect the
water in such a way that it will not cause damageto the adjacent land or
tenement
Legal Easement of Drainage
An easement of drainage may be demanded subject to compliance with
the following requisites:
(1) The yard or court of a house must be surrounded by otherhouses
(“the dominant estate”) and it is not possible togive an outlet
through the house itself to the rain collectedtherefrom;
(2) The outlet to the water must be at the point of the contiguous
lands or tenements (“the servient estate”) where its egress may be
easiest;
(3) The conduit for the drainage must be established in suchmanner
as to cause the least damage to the servient estate;and
(4) Proper indemnity must be paid to the owner of the servientestate
Section 7. Intermediate Distances and Worksfor Certain Constructions and
Plantings
Art. 677. No constructions can be built or plantings made near
fortifyed places or fortresses without compliance with the conditions
requiredin special laws, ordinances, and regulations relating thereto.
(589)
Art. 678. No person shall build any aqueduct, well, sewer,
furnace,forge, chimney, stable, depository of corrosive substances,
machinery,or factory which by reason of its nature or products is
dangerous or noxious,without observing the distances prescribed by
the regulations andcustoms of the place, and without making the
necessary protective works,subject, in regard to the manner thereof,
to the conditions prescribed bysuch regulations. These prohibitions
cannot be altered or renounced bystipulation on the part of the
adjoining proprietors.
In the absence of regulations, such precautions shall be taken
asmay be considered necessary, in order to avoid any damage to
the neighboringlands or tenements. (590a)
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Art. 679. No trees shall be planted near a tenement or piece of
landbelonging to another except at the distance authorized by the
ordinancesor customs of the place, and, in the absence thereof, at
a distance ofat least two meters from the dividing line of the estates
if tall trees areplanted and at a distance of at least fifty centimeters if
shrubs or smalltrees are planted.
Every landowner shall have the right to demand that trees
hereafterplanted at a shorter distance from his land or tenement be
uprooted.
The provisions of this article also apply to trees which have
grownspontaneously. (591a)
Art. 680. If the branches of any tree should extend over a
neighboringestate, tenement, garden or yard, the owner of the latter
shall have theright to demand that they be cut off insofar as they
may spread over hisproperty, and, if it be the roots of a neighboring
tree which should penetrateinto the land of another, the latter may
cut them off himself withinhis property. (592)
Art. 681. Fruits naturally falling upon adjacent land belong to
theowner of said land.
Intermediate Distances for Planting
Distance to Be Observed in Case of Planting Trees
Article 679 of the New Civil Code prohibits the planting of treesnear a
tenement or piece of land belonging to another person unless
thefollowing distance requirement is observed:
(a) the distance authorized by local ordinances or customs of
theplace, if any; or
(b) in default of the foregoing, at a distance of at least two
(2)meters from the dividing line of the estate in case of tall treesand
at a distance of at least 50 centimeters in case of shrubsor small
trees.
If the foregoing distance requirement is not followed, the ownerof the
adjacent land has the right to demand for the uprooting of thetrees
which were planted in violation of the rule.This remedy isalso available to
the owner of the adjacent land even with respect totrees which have
29
grown spontaneously at distances shorter than thatmentioned in the
immediately preceding paragraph
Right To Cut Branches and Roots
If the branches of any tree should extend over a neighboringestate,
tenement, garden or yard, the owner of the latter does not havethe right
to take the matter into his own hand by cutting of the branchesextending
on his property. Instead, he may demand that the protrudingbranches be
cut-off by its owner. If his demand is not acted upon, hehas to go to court
to seek authority for the cutting of the protrudingbranches
But with respect to the roots of a neighboring tree which penetrated into
the land of another, the owner of the latter may himself cut off the roots
found within his property. The reason for the difference is that with respect
to the roots, the same belong to the owner of the landwhere it is found by
reason of incorporation.This right of the adjacentowner does not prescribe
unless he has been, by a formal act, prohibitedby the owner of the tree
from cutting off the roots of the tree, in whichcase, the ten-year
prescriptive period for the establishment of a negativeeasement will
commence to run.
Fruits Naturally Falling
By way of exception to the rule in Article 441 that the fruitsbelong to the
owner of the trees, fruits which are naturally falling uponadjacent land
belong to the owner of the said land.This rule has apractical purpose —
which is to discourage the act of allowing branchesto protrude over
another’s land. This rule, however, does not apply tocases where the fruits
naturally fall on a public property in which case,the owner of the tree
retains ownership.
Section 8. Easement Against Nuisance (n)
Art. 682. Every building or piece of land is subject to the
easementwhich prohibits the proprietor or possessor from
committing nuisancethrough noise, jarring, offensive odor, smoke,
heat, dust, water, glare andother causes.
Art. 683. Subject to zoning, health, police and other laws and
regulations,factories and shops may be maintained provided the
least possibleannoyance is caused to the neighborhood.
Section 9. Lateral and Subjacent Support (n)
30
Art. 684. No proprietor shall make such excavations upon his landas
to deprive any adjacent land or building of sufficient lateral or
subjacentsupport.
Art. 685. Any stipulation or testamentary provision allowing
excavationsthat cause danger to an adjacent land or building shall
be void.
Art. 686. The legal easement of lateral and subjacent support is
notonly for buildings standing at the time the excavations are made
but alsofor constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all owners
of adjacentlands.
Legal Easement of Lateral and Subjacent Support
Concept
The right of lateral and subjacent support is the right to haveland
supported by the adjoining land or the soil beneath.Each of twoadjoining
landowners is entitled to the support of the other’s land.Support is lateral
when the supported and the supporting lands aredivided by a vertical
plane. Support is subjacent when the supportedland is above and the
supporting land is beneath it.
Easement of Lateral and Subjacent Support
The right of lateral support ordinarily exists only with respect tothe soil in its
natural condition,but our Civil Code expressly includesbuildings in the
protection of this easement. In the words of the CodeCommission, this
kind of easement or servitude is so essential to thestability of buildings.
With this purpose in mind, the law prohibits anyexcavation upon one’s
land if the same will deprive any adjacent land or building of sufficient
lateral or subjacent support.In addition, thelaw prohibits any stipulation or
testamentary provision allowing suchkind of excavation.Any such
stipulation or testamentary provision isexpressly declared to be void.
Note that the easement of lateral and subjacent support is a negativeone
— it is in the form of prohibition on the part of a landowner frommaking
any excavation that will deprive the adjacent land or building of sufficient
lateral or subjacent support. If the right of lateral andsubjacent support is
31
violated, the adjoining landowner is entitled to seekinjunctive relief, in
addition to the right to recover damages.