GENERAL PROVISIONS

Art. 634. Easements imposed by law have for their object either public use or the interest of private persons. (549)

LEGAL EASEMENTS DEFINED

> They are the easements imposed by the law, and which have for their object either public use or the interest of private persons

DIFFERENT LEGAL EASEMENTS

1. Easements relating to waters
2. Right of way
3. Light and view
4. Party wall
5. Drainage of building
6. Intermediate distances
7. Easement against nuisance
8. Lateral and subjacent support

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 this Title. (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)

HOW LEGAL EASEMENTS FOR PRIVATE INTERESTS ARE GOVERNED

1. Agreement of the interested parties
2. In default the above, of general or local laws and ordinances for the general welfare
3. In default of the above, the Civil Code

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. 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)

ENUMERATION OF LEGAL EASEMENT RELATING TO WATERS

1. Natural drainage of lands
2. Natural drainage of buildings
3. Easement on riparian banks for navigation, floatage, fishing and salvage
4. Easement of a dam
5. Easement for drawing water or for watering animals
6. Easement of aqueduct
7. Easement for the construction of a stop luck or sluice

WHAT LOWER ESTATES ARE OBLIGED TO RECEIVE

1. Water which naturally and without the intervention of man descends from the higher estates
2. The stones and earth carried by the waters

DUTIES OF THE SERVIENT ESTATE

> The owner cannot construct works that would impede the easement

DUTIES OF THE DOMINANT ESTATE

1. He cannot make works which will increase the burden
2. But he may construct works preventing erosion
3. If the descending waters are the result of artificial development or proceed from industrial establishments recently set up, or are the overflow from irrigation dams, the owner of the lower estate shall be entitled to compensation for his loss or damage

CONTRACT MAY EXTINGUISH LEGAL EASEMENT THERE IS NO NEED FOR INDEMNITY AS LONG AS THERE IS COMPLIANCE WITH CONDITIONS

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)

EASEMENT ALONG RIPARIAN BANKS RIVER BANK, DEFINED

> A bank is a lateral strip of shore washed by the water during high tides but which cannot be said to be flooded or inundated

THE EASEMENTS ALLOWED

1. On banks of rivers; a public easement for
a. Navigation
b. Floatage
c. Fishing
d. Salvage

2. On banks of navigable or floatable rivers—also the easement of tow path

PAYMENT OF INDEMNITY

1. If the land be of public ownership—no indemnity
2. If the land be of private ownership—indemnity

WIDTH OF ZONE BURDENED

1. Three meters along the river margins, for navigation, floatage,  fishing or salvage
2. Tow path—2 meters if for animals and 1 meter if for pedestrians

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)

EASEMENT CONCERNING A DAM

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)

EASEMENTS FOR DRAWING WATER OR FOR WATERING ANIMALS

1. They can be imposed only for reasons of public use
2. They must be in favor of a town or village
3. Proper indemnity must be paid

Art. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service. (556)

EASEMENTS COVERED

> Easements for drawing water and watering animals but there is also an accessory easement combined with easement of right of way

REQUIREMENTS FOR SUCH AN EASEMENT TO EXIST

1. It must be for public use
2. It must be in favor of a town or village
3. The right must be sought not by one individual but by the town or village, through its legal representative
4. The right of way should have a maximum width of 10 meters, which cannot be altered by the owners of the servient estates although the direction of the path may indeed be changed,  provided that the use of the easement is not prejudiced

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)

EASEMENT OF AQUEDUCT

> The right to make water flow through intervening estates in order that one may make use of said waters

RIGHT TO ACQUIRE THE EASEMENT OF AQUEDUCT

4 REQUISITES FOR THE LEGAL EASEMENT OF AQUEDUCT

1. That he can dispose of the water
2. That it is sufficient for the use for which it is intended;
3. That the proposed right of way is the most convenient and the least onerous to third persons;
4. To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

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;
(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)

CONSTRUCTION OF A STOP LOCK OR SLUICE GATE

1. Purpose must be for irrigation or improvement
2. The construction must be on the estate of another
3. Damages must be paid
4. Third persons shouldn’t be prejudiced

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)

PROVISIONS THAT GOVERN EASEMENTS RELATING TO WATERS

> Civil code provisions on easement of waters prevail over special laws
> In case of conflict between special laws and the new CC, the latter prevails

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 immovables pertaining to other persons and without adequate outlet 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)

EASEMENT OF RIGHT OF WAY DEFINED

> Easement or privilege by which one person in a particular class of persons is allowed to pass over another land, usually through one particular path or line

REQUISITES FOR THE EASEMENT

1. The property is surrounded by estate of others and there is no adequate outlet to a public highway
2. It must 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
3. There must be payment of the proper indemnity
4. The isolation should not be due to the proprietor’s own acts

PROPER INDEMNITY

1. If the passage is permanent, pay the value of the land occupied by the path plus damages
2. If temporary, pay for the damages caused

CLASSIFICATION OF RIGHT OF WAY

1. Private
2. public

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)

N.B: Adequacy to dominant estate

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)

WIDTH OF PATH

> The width may be modified from time to time depending on the reasonable needs of the dominant estate

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)

RULE IF LAND OF VENDOR IS ISOLATED FROM THE HIGHWAY

> Indemnity included in the purchase price—the buyer is the owner of the dominant estate

Art. 653. In the case of the preceding article, if it is the land of the grantor that becomes isolated, he may demand a right of way after paying a indemnity. However, the donor shall not be liable for indemnity. (n)

RULES IF GRANTOR OR GRANTEE’S LAND IS ENCLOSED

1. If the enclosing estate is that of the grantor, the grantee doesn’t pay indemnity for the easement
2. If the enclosed estate is that of the grantor, the grantor must pay indemnity

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)

OWNERSHIP OF, REPAIRS AND TAXES ON, THE PATH

1. Even though permanent, the path belongs to the servient estate, and he pays all the taxes
2. But the dominant estate—
a. Should pay for repairs
b. Should pay proportionate share of taxes to the servient estate

Art. 655. If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate MAY DEMAND that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate.  In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. (568a)

CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY

1. Opening of a new road
2. Joining the dominant estate to another

EXTINGUISHMENT NOT AUTOMATIC

> The extinguishment is not automatic
> The law says that the servient estate may demand
> It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity

NON-APPLICABILITY OF THE ARTICLE TO A VOLUNTARY EASEMENT NO RETURN OF INDEMNITY IN CASE OF TEMPORARY EASEMENT

Art. 656. If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. (569a)

TEMPORARY EASEMENT OF RIGHT OF WAY

1. The easement here is necessarily only temporary, nonetheless proper indemnity must be given
2. Indispensable is not to be construed literally

3. The owner can make use of Article 656

Art. 657. Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. 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 case the width shall not exceed 10 meters. (570a)

EASEMENT OF RIGHT OF WAY FOR THE PASSAGE OF LIVESTOCK: WIDTH

1. Animal path—75 meters
2. Animal trail—37 meters and 50 centimeters
3. Cattle—10 meters