Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (537a)
Modes of acquiring easements 1. By title. All easements.
a. Continuous and apparent easements (Art 620) b. Continuous and non-apparent easements (Art 622) c. Discontinuous easements, whether apparent or non-
apparent
2. By prescription of ten years – only continuous and apparent easements 3. By deed of recognition (Art 623)
4. By final judgment
5. By apparent sign established by the owner of two adjoining estates (Art 624)
Acquisition by title or prescription
Only continuous and apparent easements may be acquired either by virtue of a title or by prescription in 10 years.
By title, it refers to the juridical act which gives birth to the easement, such as law, donation, contract and will of the testator.
This article fixes ten years as the period of prescription, regardless of good faith or bad faith of the possessor and whether or not he has just title.
The general rules on prescription do not apply, the only requirement being that there be adverse possession of the easement for ten years. Case doctrines
Prescription as a mode of acquisition requires the existence of the following:
2. Capacity to acquire by prescription
3. Thing capable of acquisition by prescription 4. Possession of the thing under certain conditions
Under claim of title (en concepto de dueno)
Possession not merely tolerated by owner
5. Lapse of time provided by law (National Power Corp v Campos)
Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from 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; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (538a)
Computation of the prescriptive period
If the easement is positive, the period is counted from the day on which the owner of the dominant estate began to exercise it
If the easement is negative, from the day on which a notarial prohibition was made on the servient estate
Under article 622, non-apparent easements may not be acquired by prescription. Negative easements are essentially non-apparent. However, article 621 provides the prescriptive period for negative easements. The notarial prohibition may be taken as making the easement apparent, and therefore, prescriptible.
Computation in case of easement of light and view
If made on one’s own wall and the wall does not extend over the property of another, the easement is negative because the owner is merely exercising his inherent right of dominion and not an easement.
o The servient owner cannot close it up; otherwise he will be liable for trespass.
o But the negative easement is not automatically vested. The owner must make the prohibition required upon the proprietor of the adjoining land or tenement to prevent him from obstructing the light and view.
o If the latter consents to such prohibition and the period fixed by law expires, the easement will be acquired by prescription. There is no true easement for as long as the right to prohibit its exercise exists.
If made through a party wall or on one’s own wall which extends over the neighboring estate, the easement acquired is positive because the owner of the latter estate who has a right to close it up allows an encumbrance on the property.
o The period of prescription shall be counted from the time of the opening of the window.
Art. 622. Continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. (539)
Acquisition only by title
Continuous and apparent easements are the only easements that can be acquired by prescription because they are the only ones the possession of which fulfills two important requisites required by law for prescription – possession be public and continuous.
The easements mentioned in Art 622 may be acquired by title, not by prescription because their possession or exercise is either not public
(non-apparent) such as easement of lateral and subjacent support, or it is public but not continuous or uninterrupted (discontinuous), like a right of way if there is a visible path.
However, for legal purposes, the easement of aqueduct shall be considered as continuous and apparent, although it is not really so.
Art. 623. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment. (540a)
Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. (541a)
Alienation by same owner of two estates with sign of existence of servitude
This contemplates a situation where two estates between which there exists an apparent sign (like a window or road) of an easement belong to the same owner.
What the law requires is that the sign indicates the existence of a servitude although there is no true servitude there being only one owner
In case the owner alienates either of them or both with the result that the ownership thereof is divided, the easement shall “continue” unless the contrary has been stipulated in the title of conveyance of either of them or the sign removed before the execution of the deed
o The existence of the apparent sign is equivalent to a title if no objection has been made by the servient owner for an implied contract that the easement should be constituted is deemed to exist between the new owners
o The dominant owner can oppose the owner of the servient estate from doing anything which would be inconsistent with his obligation to respect the easement
If the lots are owned by two different owners, a notarial prohibition should be effected (Atty Abrenica)
This article applies in case of the division of a common property by the co-owners as the effect is the same as an alienation, or there is only one estate and a part thereof is alienated.
This article is not applicable in case the two estates or portions of the same estate remain or continue to be in the same owner after alienation or partition
Case doctrine
Where two adjoining estates were formerly owner by just one person who introduced improvements on both, such that the wall of the house constructed on the first estate extends to the wall of the camarin on the second estate; and at the time of the sale of the first estate, there existed on the wall of the house, doors and windows (which serve as passages for light and view), there being no provision in the deed of sale that the easement of light and view will not be established, the case is covered by 624.
The existence of doors and windows on the aforesaid wall of the house is equivalent to a title that characterizes its existence.
But while the law declares that the easement is to “continue”, the easement actually arises for the first time only upon alienation of another estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates. (Gargantos v Tan Yanon)
Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. (542)
Rights granted by easement
All easements carry with them all the rights necessary for their use and exercise
Since these accessory rights or accessory easements exist solely by virtue of and for the use of the servitude which can be considered as the principal one, they cease upon the termination of the servitude
Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established. (n)
Immovable to be benefited by easement, and manner of its exercise
The rule in the first sentence is just because if the owner of the dominant estate is allowed to use the servitude for the benefit of other adjoining lands subsequently acquired, or for others, that would make the easement more onerous and beyond the intention of the parties
If the easement has been constituted in general terms, only the rights which are reasonably necessary and convenient for the use
contemplated and would case the least burden to the servient estate are granted.
Where the purpose of the easement or the manner of its exercise is defined by the title creating it, the exercise of the easement must be consistent with such purpose or manner