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)
Legal easements relating to waters 1. Natural drainage (637) 2. Drainage of buildings (674)
3. Easement on riparian banks for navigation, floatage, fishing, salvage, and towpath (638)
4. Easement of a dam (639, 647)
5. Easement for drawing water or for watering animals (640-641) 6. Easement of aqueduct (642-646)
7. Easement for the construction of a stop lock or sluice gate (647) Natural drainage of lands
This article imposes a natural easement upon the lower estates which 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 carried by the waters.
This easement is a continuous one and may be extinguished by non-user for the period of 10 years required by law. Thus, if a dike was
constructed by the servient owner (an act contrary to the easement), the action to destroy the dike is barred if brought only after 1 years.
Duty of servient owner – the owner of the lower estate cannot construct works which will impede this easement, such as walls, ditches or fences, or a dam which blocks the natural flow of the waters. The dominant owner may demand their removal or destruction and recover damages. The servient owner may construct works to regulate the flow of waters, but not those which will impede the easement.
Duty of dominant owner – the owner of the higher tenement cannot make works which will increase the burden. If the waters are the result of artificial development, or are the overflow from irrigation dams, or proceed from industrial establishments recently set up, the owner of the lower estate shall be entitled to compensation for his loss or damage.
o But the dominant owner is not prohibited from cultivating his land or constructing works to regulate the descent of the waters to prevent erosion to his land and as long as he does not impede the natural flow of the waters and increase the burden of the lower estate, he is not liable for damages.
Remember Remman v CA? The case with the pig shit? It also said that tax returns per se could not reflect the total amount of damages suffered by a party, as income losses from a portion of his property could be offset by any profit derived from the rest of said property or from other sources of income.
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)
Public easements on banks of river
Banks of rivers and streams, whether they are of public or private ownership, are subject to easement of public use for:
1. Navigation 2. Floatage 3. Fishing
4. Salvage
5. With respect to estates adjourning banks of navigable rivers, also to easement of towpath.
If the land is of public ownership, there is no indemnity; if of private ownership, the proper indemnity shall first be paid before it may be occupied. Riparian owners cannot be required to subject their property to the easement for the benefit of the public without prior indemnity.
The width of the zone subject to the easement is 3 meters throughout the entire length of the bank along its margin.
The easement established by Article 638 does not apply to canals or esteros.
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)
Abutment of buttress of a dam
A person who needs to build a dam to divert or take water from a river or brook but is not the owner of the banks or lands which must support the dam, may be allowed the easement of abutment or buttress of a dam (estribo de presa)
He must seek the permission of the owner, and in case of the latter’s refustal, he must secure authority from the proper administrative agency which will conduct the necessary investigation in which all interested parties are given opportunity to be heard. In establishing the easement, the proper indemnity must be paid.
Where the construction of a dam is unauthorized, the same can be considered a private nuisance and may be lawfully destroyed or removed by the injured landowner or by any persona acting under his directions.
Case doctrine
An easement of buttress can be imposed by administrative authority with respect to land lying adjacent to public or private waters; but in such case it is required that an investigation of record shall be made before the easement of buttress is decreed. The making of the
investigation of record is an essential prerequisite to the exercise of the power. (Solis v Pujeda)
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) Drawing water or watering animals
This is a personal easement which includes the accessory easement of passage or right of way of persons and animals to the place where the easement is to be used.
Requisites are:
1. Must be imposed for reasons of public use;
2. Must be in favor of a town or village; and 3. Must be payment of proper indemnity.
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;
(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)
Easement of aqueduct… what is it?!
Easement of aqueduct is the right arising from a forced easement by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow.
The easement is provided in Article 642. It gives the right to make water flow through or under intervening or lower estates.
Requisites?
The person desiring to make use of the easement must:
1. Prove that he has the capacity to dispose of the water;
2. Prove that the water is sufficient for the use intended;
3. Show that the proposed right of way is the most convenient and the least onerous to third persons; and
4. Pay indemnity to the owner of the servient estate.
But where the number of years that have elapsed since the easement had first come into existence and the subsequent changes in ownership of lots involved would make it impossible to present proof of indemnity to the owner of the servient estate, this requisite has been deemed to be complied with.
(Salazar v Gutierrez)
The easement cannot be imposed over buildings, courtyards, annexes or gardens if the easement is for private interest.
Case doctrines
The Spanish Law of Waters allows the creation of a compulsory easement of aqueduct for the purpose of establishing or extending an irrigation system, and there is nothing to the contrary in the Civil Code.
The registration of the servient lot without the corresponding registration of the easement of aqueduct on the title cannot summarily terminate it 30 years thereafter where the original registered owner of the servient lot allowed the easement to continue in spite of such non-registration.
The least that can be said is that he either recognized its existence as a compulsory servitude on his estate or voluntarily agreed to its
establishment and continuance. And subsequent purchasers of the servient estate cannot capitalize on the absence of annotation on the title where they are aware of the existence of the easement and likewise
allowed it to continue for 26 years after they acquired title. (Salazar v Gutierrez)
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)
Right of owner of servient estate
The servient owner may close or fence his estate, or build over the aqueduct so long as no damage is caused to the aqueduct or the necessary repairs and cleaning of the same are not rendered impossible.
He can construct works he may deem necessary to prevent damage to himself provided he does not impede or impair, in any manner
whatsoever, the use of the easement – just like the owner of the lower estate on which an easement of natural drainage has been established.
If he does impair, the dominant owner may ask for the removal or destruction of such works with a right to indemnity for damages.
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) Easement considered as continuous and apparent
For legal purposes, the easement is considered continuous and apparent and therefore, may be susceptible of acquisitive prescription.
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
In Article 639, the purpose of building a dam is to divert water from a river or brook. Here, the purpose of the construction is to take water for irrigation, or to improve an estate.
In both cases, the construction is on the estate of another and proper indemnity has to be paid. Furthermore, no damage must be caused to third persons.
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)