On passing through easements

(Conclusion)

Legal easements, or those imposed by law, have for their object either public use or the interest of private persons.

Legal easements for public or communal use shall be governed by the relevant special laws and regulations and in the absence thereof, by the provisions of the Civil Code.

Meanwhile, legal easements established in the interest of private persons shall be governed by the provisions of the Civil Code, general or local laws, and ordinances for the general welfare. Nevertheless, 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.

Under the Civil Code, easements may be created to accommodate bodies of water. Thus, lower estates are obliged to receive the waters which naturally and without man’s intervention descend from 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. Relatedly, the owner of the higher estate cannot construct works which will increase the burden.

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.

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 his owners, as well as the owners of the lower estates upon which the waters may filter or descend. Moreover, this person is obliged to: (a) prove that he can dispose of the water and that it is sufficient for its intended use; (b) show that the proposed right of way is the most convenient and least onerous to third persons; and (c) indemnify the owner of the servient estate in the manner determined by the relevant laws and regulations.

Meanwhile, easements may be created to establish a right of way. To be sure, 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.

This easement is not compulsory if the isolation of the immovable was due to the proprietor’s own acts.

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 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.

If the right of way was 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.

If the right of way granted to a surrounding estate would cease to be necessary because its owner had 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. This rule also applies to the opening a new road, giving access to the isolated estate.

Another kind of easement is that of a party wall. Unless there is a contrary title, exterior sign or other proof, a party wall is presumed to exist: (a) in dividing walls of adjoining buildings up to the point of common elevation; (b) in dividing walls of gardens or yards situated in cities, towns or in rural communities; and (c) in fences, walls and live hedges dividing rural lands.

The cost of repairs and construction of party walls, as well as the maintenance of similar structures 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.