PROPERTY REVIEWER Part 2 OWNERSHIP A.

Definition
Ownershipit is the independent right of exclusive enjoyment and control of the thing for the purpose of deriving therefrom all the advantages required by the reasonable needs of the owner (or holder of the right) and the promotion of the general welfare, but subject to the restrictions imposed by law and rights of others. (JBL Reyes) Ownership is a relation in private law by virtue of which a thing (or property right) pertaining to one person is completely subjected to his will in everything not prohibited by public law or the concurrence with the rights of another. (Scialoja) Labnotes According to Sir, the definition of Scialoja is the better definition. Fullest of all real rights Real Rights - May be enforced against the whole world - Deals only with real property - Wherever property goes, so does the right. - Right exists as long as the property exists Personal Rights - Can only be enforced against the other party - Rights and obligations from the 5 sources of obligations - Right is to demand prestation (e.g., rescission plus damages or actions for specific performance) For example your dog Buster is still yours even if you cant find him anywhere. You can still ask for the return of Buster as long as he is alive because you still have ownership unless it is extinguished. Right of a person to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the state or private persons, without prejudice to provisions of law. Independent and general power of a person over a thing for purposes recognized by law and within the limits established thereby. A relation in private law by virtue of which a thing pertaining to one person is completely subjected May be exercised over things or rights.

B. Bundle of rights included in ownership

Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it. Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such forces as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

Attributes of Ownership (1) Jus Utendi (right to use)right to

enjoy by receiving the thing that it produces.

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(2) Jus abutendiright to enjoy by
consuming the thing by its use Example of right to enjoy: A purchaser of a house has the right to terminate a lease executed by the vendor, in the absence of stipulation to the contrary, because the right to use said house is one of the things included in the right of ownership transferred in the sale. Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. Doctrine of self-help authorizes the lawful possessor to use reasonable force to prevent a threatened unlawful invasion or usurpation of the property. The invasion must be physical. There must be real and unlawful aggression, an imminent violation of the law. Examples of Lawful Agression: (a) Execution of an extra-judicial abatement of a nuisance per se. (b) lawful exercise of functions of a public official such as a sheriff attaching a property. Likened to self-defense The possessor must limit his acts to those necessary to repel the aggression. Use of force more than necessary makes the possessor liable for damages. Right given only to an immediate possessor. A negotiorum gestor, even if a third person, may take the necessary measure to repel aggression. An attack against an unlawful possessor is not unlawful. A person possessing in the name of another would not be entitled to self-help against the real possessor. Actual invasion of the property may consist of a mere disturbance of possession or of a real dispossession. (a) If mere disturbance, force may be used as long as disturbance continues. (b) If real dispossession: force may only be used immediately after

(3) Jus Disponendithe right to

dispose or the power of the owner to alienate, encumber, transform, and even destroy the thing owned. - Includes right no to dispose - This right is reserved exclusively to the owner - This right can be partial if it can be divided. It can also be temporary as in the case of lease or pledge. (4) Jus Fruendi right to receive fruits

(5) Jus Vindicandiright to exclude

from the possession of the thing owned by any other person to whome the ownership has not transmitted such thing, by the proper action for restitution, with the fruits, accessions, and indemnification for damages. - He may proceed not only against the person in actual possession of it but also against any other person unlawfully detaining. - Right is given to the owner but may be transferred to a transferee - Owner must prove both the identity of the property as well as his ownership.

C. Other Specific Rights

(1) Right to Exclude: Doctrine of Self-Help

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the dispossession. Delay even if excusable, will bar the right to the use of force. In such a case, he has to file a complaint for FE. Example The squatters already succeeded in putting up shanties in your property. One Sunday, they go to Splash Island. You, the owner, hire someone to lift their shanties. Before this is completed squatters arrice. Can the squatters use self-help? NO. Their possession is wrongful from the start, so they are not entitled to use self-help. They are not the lawful possessor. But they can resort to other remedies such as filing an action for Coercion or Malicious Mischief. (2) Right to Enclose or Fence Art. 430. Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon. Hedges fence or boundary of shrubs or small trees. A person cannot enclose his tenement and construct a fish pond that will obstruct the natural flow of waters from the upper tenements to the injury of the owners of such tenements. (Lunod v. Meneses) (3) Right to Receive Just Compensation in case of Expropriation Art. 435. No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession. Art. III, Sec., 1987 Constitution Private property shall not be taken for public use without just compensation. Private property is taken for public use after the payment of compensation. If real property was entered and constructed upon by a public service corporation for the benefit of the public, the owner of real property is estopped from insituting an action to recover possession of his property if he has been given actual or constructive notice of entry upon his lands. The question as to whether a particular use is for public purpose is a judicial question. May be for the benefit of all (construction of a road) or for the benefit of a few citizens (subdivision of large tracts of land for housing) Just compensation is an equivalent value of the land or the full and fair equivalent of the loss sustained such as value of the buildings and other improvements. Injury sustained by adjoining premises may also be offset by incidental benefits arising from the use for which that property has been expropriated. Incidental benefits (of the owner of the expropriated land) may be set off against incidental damages but not against the basic value of the property. Fair Market Value is the price a seller not compelled to sell is willing to sell. Fair Market Value should be fixed at the dater of the proceedings and with relative situation at the time it is taken, and not as enhanced by the purpose for which it is taken.

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(4) Right to Space and Subsoil Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. The right of the owner extends to the space and subsoil as far as necessary for his practical interests or to the point where it is possible to assert his dominion and there is the possibility of obtaining some enjoyment or benefit. Beyond these limits, he would have no legal interests. Criterion is economic utility Benefit must be actual and concrete not remote or imaginary (5) Right to Hidden Treasure Art. 438. Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to the finder, If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or the arts, the State may acquire them at their jus price, which shall be divided in conformity with the rule stated. Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear. The Old Civil code requires that the hidden deposit must be ancient but the NCC no longer requires this. An object becomes hidden treasure when the thing has already been considered lost by the owner, or he has already abandoned it and third persons do not know of its existence. Strangers Anyone who has absolutely no right over the immovable or the thing in which the treasure is found. (includes) Lesees, Usufructuary, or a paid laborer working for the owner of the land, provided that he has not been engaged precisely to look for the hidden treasure. Stranger entitled to of the treasure When, even if discovery is not by chance, he obtained express consent from the owner to look for the treasure in his property or.. When the owner ordered him to search for the treasure in his property and there was an agreement that he will be entitled to a share. Discovery by chance When there is no purpose or intent to look for the treasure. The discovery will not be by chance if he enters the property without the owners permission because he will be presumed to have entered to purposely look for the treasure. Finder One who actually found or discovered the treasure such as the one whose pickaxe struck and exposed the treasure even if he was not the one who took material possession of it.

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Effect of concealment by the finder The finder does not only lose his share but he becomes civilly liable to the owner and criminally for taking something but not belonging to him (the share of the landowner). He will also be liable for the loss or deterioration of the thing he possesses in bad faith. Two Requirements for the concept of treasure --They consist of money, jewels, or other precious objects The law refers only to movables. Example is a prehistoric tomb but the tomb itself is not a hidden treasure. The objects found in it are hidden treasure if only for their archeological value (last paragraph of Art. 438) are within the commerce of man --They are hidden and unknown such that their finding is a real discovery. The owner must be unknown. Where the owner has just forgotten where he had hidden precious objects belonging to him they do not constitute hidden treasure susceptible at occupation. An owner who hides a precious object far from renounces his right of ownership, affirms such ownership more positively. If treasure is found on the walls of a building and the land belongs to another, the owner of the building or the materials thereof, if it is to be demolished, owns the treasure. There are 2 interpretations of the phrase by chance. The strict interpretation says that it means not to purposely for it. The liberal interpretation holds that the phrase means the treasure was found by sheer luck, no one can purposely look for it. Labnotes Q: Can you contract with another party to look for the treasure and claim it as hidden when its found? A: Of course! As of now, the SC applies the liberal interpretation. Also, many commentators adhere to the liberal interpretation because hardly anyone stumbles into the treasure. Most are found through ventures and contract. Q: (The Titanic example) What if the necklace sunk with the ship in international waters? What rules will apply? A: The International Law on Waters will apply, not the Civil Code. (6) Right to accession Art. 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. (7) Right to Recover Possession and/or Ownership (Jus Vindicandi) (a) Available actions to recover possession/ownership Immovable Property (1) Forcible entry Possession is unlawful from the start A lawful possessor was unlawfully deprived of possession through Force, Intimidation, Strategy, Threat or Stealth (FISTS) Action must be brought within one year from the time such unlawful deprivation ceased to exist. Covered by Rule 70, Rules of Court (2) Unlawful Detainer possession is lawful initially Occurs when a landlord, vendor, vendee, or other person who used to have a

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right to possess unlawfully retains or withholds possession when the right to possess no longer exists due to termination or expiration of an implied or express contract. Acton must be brought within one year from the last date of demand to vacate the premises. Demand may be personal or in writing. No demand is necessary for a lessee to vacate as the contact of lease stipulated the date of expiration of the contract Demand must be unequivocally be reflective of intent to recover possession Covered by Rule 70, Rules of Court action for Forcible Entry/ Unlawful Detainer? (1) The fair rental value of the reasonable compensation for the use and occupation of the real property. (2) Other damages must be claimed in a separate, ordinary action and whatever the amount may be will not affect the courts jurisdiction over the FE/UD case. (3) Does not include moral, exemplary, and actual damages as they are not considered as rents nor reasonable compensation for the use and occupation of the premises not fair rental value. Defendant may set up a counterclaim for moral damages and recover it if within the jurisdiction of the court. If such claim is beyond the courts jurisdiction, it may be set up not to weaken the plaintiffs claim, but to obtain an award. (3) Accion Publiciana or Plenary Action Recovery of Possession Owner is dispossessed by any other means than the grounds for instituting a Forcible Entry and Unlawful Detainer case. Jurisdiction is with the Regional Trial Court May be brought even before the expiration of the 1 year period UNLESS a FE/UD case has already been filed. May not be brought when there has been a judgment in the FE/UD case Remember: AP doesnt bar FE/UD but FE/UD bars AP The probable reason is that wile the issue on both

In both cases, the only issue involved is physical possession and thus decision in such action is res judicata only on the question of possession. Jurisdiction is with the Municipal or City Court When does MTC lose its jurisdiction? It is not enough that the defendant raises a claim of ownership. When the issue of possession necessarily depends on the result of inquiring into the title. In such case, the action is dismissed without prejudice. In case of judgment, immediate execution may be issued to prevent further damages to the plaintiff. Sub-lessees are bound by judgments against their sublessor/lessees. What are the damages that can be recovered in an

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instances is physical possession, FE/UD are more specific as to coverage. Court may decide on the issue of ownership even if the case is AP Example of dispossession when AP is proper Possession of the land is due to mere tolerance of the owner. (4) Accion Reivindicatoria Action for Recovery of Real Property It has for its object the recovery of the dominion over the property as its owner. Main issue is ownership not merely possession. This is the remedy available when an action referring to possession has already been decided. Judgment in FE/UD case of AP is not a bar to the filing of AR Example when AR is proper: A party refuses to deliver the property due to an adverse claim of ownership. (5) Writ of Possession The original registered owner in the Torrens System, is entitled to a writ of possession not only against the parties who appear and answer in the land registration proceedings, but also against all those who, having been served with process, do not appear or answer. Will be issued only once and only in favor of parties in possession of the property at the time of the registration. This remedy is usually IMPROPER to eject another in possession. Except: (1) in a land registration proceeding (2) an extrajudicial foreclosure of mortgage (3) a judicial foreclosure of mortgage provided that the mortgagor has possession and no third party has intervened. (4) Executi on sales (6) Writ of injunction Not a proper remedy for the recovery of possession UNLESS plaintiff is admittedly the owner of the property and is in possession of it. May be used to prevent or restrain acts of trespass or illegal interference by others of his possession of the property. In actions of FE, the plaintiff within 10 days from the filing of the complaint, may file a motion for a Writ of Preliminary Mandatory Injunction to restore him in possession (mandatory) and prevent further acts of dispossession (injunction). Labnotes Q: Is Constructive Possession Enough For Forcible Entry? A: NO. In forcible entry, the deprivation of possession must be committed by force, intimidation, stealth, threats, or strategy. One who is merely in constructive possession cannot be deprived of such possession in that

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manner. His action for accion publiciana. Q: Can the lessor who is not the owner of the property (ex. usufructuary, sublessor) be the plaintiff in an ejectment case? A: YES. The plaintiff need not be the owner. The requirement is that he has a better right. RULE: If the forcible entry, unlawful detainer case can be decided without deciding he ownership question, if will not dwell on this. If the ownership question needs to be answered, the issue is not actual, physical possession BUT ownership. The consequence of this is that MTC loses jurisdiction. RTC now has jurisdiction over the case. Movable Property (1) Replevin or for manual delivery Rule 60, Revised Rules on Civil Procedure Art. 433. Actual possession under claim of ownership raises disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property. Resort to judicial process is applicable for both immovable and movable property. IT is similar to Art. 536 and 541. Requisites to raise the disputable presumption of ownership. (1) There must be actual (physical or material) possession of the property (2) The possession must be under the claim of ownership. Possessor of the property has a presumptive of title in his favor. One must not take the law into his own hands and must resort to judicial process to obtain possession. Art. 434. In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendants claim. Requisites in an action to recover (a) Identity of the property; and May be established through the presentation of evidence such as the survey plan of the property or the testimony of competent and credible witnesses. Strength of plaintiffs title/ Better Title The plaintiffs right to recover must be founded on a positive title or right not merely on the negative ones such as the lack or insufficiency of the title of others. The possessor has a presumptive title and unless he has a better title, he cannot recover the property. He must depend on the strength of his own title and not on the weakness of the title of the other. One year after a decree of registration under the Torrens System, the title becomes perfect and indefeasible. Ownership and title to land duly recorded cannot be overcome by gratuitous titles such as inheritance or donation or mere tax declarations. Tax declarations are strong evidence of ownership where accompanied by possession for period sufficient for prescription. Titles from the Spanish government have been held sufficient basis to prove ownership. Composition titlesproof of exclusive ownership

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Possessory information titleonly prima facie evidence and rebuttable. Cases Perez v. Mendoza Facts Felisa Montalbo inherited land from her father, which she exchanged with that of her aunt, Andrea. After the exchange, Andrea donated half the land to her daughter Margarita. Margarita and her husband, Nicolas Mendoza, occupied the land continuously, in the concept of owners. When Nicolas sought the transfer of the property in their names, he submitted the deed of exchange of property executed by Felisa and Andrea. Basilio Perez (Petras husband) accused Nicolas and Andrea of falsifying the deed of exchange. The Perezes brought an action against the Mendozas for quieting of title, alleging that the latter leased the lot from them and refused to return it when the lease ended. Held The Perezes failed to prove their ownership of the land. Art. 433 NCC provides: Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for recovery of the property. Under Art. 538 NCC, the present possessor is to be preferred in case there are conflicting claims. The Mendozas are presently in possession of the property and the presumption of ownership in their favor has not been successfully rebutted by evidence that they are mere lessees as the Perezes claimed. Dizon v. CA Facts Galang spouses owned two lots, which they mortgaged. Their son Dionisio redeemed the lot in his own name despite the fact that the funds came from his five sisters. After a cadastral survey on the two lots, the CFI ordered the issuance of OCTs solely in Dionisios name. The heirs of Dionisios sisters claim that the six Galang siblings partitioned the lots in an unnotarized affidavit. Held The properties belonged solely to Dionisio and not in co-ownership with his sisters. Dionisios ownership had been judicially confirmed by the CFI, which involved a proceeding in rem and hence binding on the whole world. As Dionisios heirs claimed, when the OCTs were issued the heirs of his sisters did not object and only filed a complaint in court after 61 years. The OCTs became indefeasible and incontrovertible. As to the unnotarized affidavit, it failed to identify the properties involved. There was no reference to the disputed lots. As such, it is not a sufficient basis or support for the alleged partition.

D.Limitation of Real Right of Ownership

(1) General Limitation (a) For the benefit of the state and for public interest (i) Expropriation for public use (ii) Military requisitions (iii) Zonification laws (iv) Public or govt monopolies (v) Law on water and mines (vi) Public health and safety (vii) Public easements

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Police Power Art. 436. When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. Everything essential to the public safety, health and morals, and to justify the destruction or abatement by summary proceedings of whatever may be regarded as public nuisance. The right to hold, enjoy and convey property is not an absolute right but is subject to the police power of the State through the enactment of laws by the legislature for the public weal. An owner hold property under the implied liability that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. Unlike in eminent domain, private property may be taken under police power without just compensation. There is a balancing of interests between the right of a particular class and those of the public in general. Requisites: (1) Reasonableness of means to accomplish the purpose (2) Reasonableness of ends balancing of interests (3) Reasonableness of implementation not oppressive Private property is taken for public use after the payment of just compensation. (See previous discussion)

Power of Taxation Most pervading attribute to sovereignty. The State imposes a burden or an exaction which, in case of failure to discharge it, may be followed by seizure and the sale or confiscation of the property. (2) Specific Limitations (a) Legal servitudes (b) Limitations imposed by party transmitting property (i) Either by contract or last will or donations (ii) Stipulation on inalienability Prohibition that is perpetual is void. Prohibition in a will or in a donation for more than 20 years is considered perpetual and thus void Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than 20 years are void.

Exception No. 1: Fideicommissary where the inalienability may last during the lifetime of the first heir.

Eminent Domain or Expropriation

Art. 863. A fideicommissary substitution by virtue of which the fiduciary or the heir instituted is entrusted with the obligation to preserve and to transmit to second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir

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and the second heir are living at the time of the death of the testator. Exception No.2: When the donor provides for a reversion. limitation and is therefore void. (Pactum de non alianado) Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void. (d) Inherent limitations arising from conflicts from other similar rights ex. Contiguity of property. (3) Limitation from Scattered Provisions of the Civil Code Art. 431. The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person.

Art. 757. Reversion may be validly established in favor of only the donor in any case and circumstances, but not in favor of other persons unless they are living at the time of the donation. Any reversion stipulated by the donor in favor of athird person in violation of what is provided in the preceding paragraph shall be void, but shall not nullify the donation. Temporary prohibition is valid if it is for a short time and serves some serious and lawful interst in the grantor, grantee or third person. Sanctions for a valid Stipulation on inalienability; (a) resolution of the grant such as revocation of donation. (b) invalidation of alienation Property subject to a noninalienability clause cannot be subject to attachment. (c) Limitation of owner The owner may impose limitations upon his right of ownership by any voluntary act that is permissible under the law. The limitation may even affect the thing event after it has ceased to belong to the person imposing the limitation. Law prevents limitations which are arbitrary and capricious. Examples: voluntary servitude, mortgages, pledges, lease rights, usufructuary rights A stipulation prohibiting the mortgagor from selling his mortgaged property is not a valid

Latin maxim: Sic Utere Tuo Ut Alienum Non Laedasit is unlawful to exercise the right of ownership in such a manner as to have no other effect than to injure a third person without benefit to the owner. Inconvenience arising from a general and ordinary manner of use should be treated as a mere consequence of community life. An owner cannot be debarred from the legitimate use of his property simply because it may cause a real damage to his neighbor. Example of Art. 431 is when the use of the property constitutes a nuisance. (a) Act in State of Necessity.

Art. 432. The owner of a thing has no right to prohibit the interference of another with the same. If the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the powner from the interference is greater, the owner may

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be benefited indemnity from the damage to him. The law permits the injury or destruction of things belonging to others provided this is necessary to avert a greater danger or dangers. Those who benefited must pay indemnity to the owner of the thing or property which was sacrificed to avert the danger unless such owner caused danger to himself. Basis of the liability is benefit derived. Danger must be objective. If one believed himself to be in state of necessity and used means in excess of what is required, the owner mause force necessary to repel his unlawful aggression against his property. Different from defense against unlawful aggression to protect property or defense against dangerous objects. The purpose is to protect the actor himself or another person at the expense f the owner of the property who has no part in the state of necessity. The source of danger is immaterial. It is necessary that the interference with another persons property is indispensable to avert the threatened danger or dangers. The seriousness or gravity of the danger must be greater than the damage to the property. Danger to life is always greater than damage to property. If the danger threatens property only, the value of the property in danger must be more than the thing causing the danger or the property to be sacrificed. The state of necessity confers upon the person in danger the power to take all necessary measure in anothers peoperty to avert the danger. He may get it from the owner, detain it, damage or destroy it. The owner is obliged to tolerate these acts. The person in danger maystill lawfully act to repel the danger even if he was negligent. Example: A person who negligently eats an unknown object in a drug store which turned out to be poison, may lawfully drink any antidote he may find the store even without the consent of the owner. (b) Liability of Proprietors Art. 2191. Proprietors shall also be liable for damages caused. (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place. (2) By excessive smoke which may be harmful to persons and property. (3) By the falling of trees situated at or near the highways or lanes, if not caused by force majeur; (4) By emanations from tubes, canals, sewers, or deposits of infectious matter, constructed without precautions suitable to the place; (c) Fortified places or Fortresses Art. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. (d) Easement of Aqueduct Art. 678. No person shall build any aqueduct, well, sewer, furnace, forge

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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 and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. Art. 669. When the distances in article 670 are not observed, the owner of a wall which is not 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 joins 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 partownership 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. 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 centimeters. The nonobservance of these distances does not give rise to prescription. (g) 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 movables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way

(e) Planting of Trees Art. 679. No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance form his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. (f) Easement of light and view

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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 consiste of the value of the land occupied and the amount of the damages caused to the servient estate. In case the right of way is limited to the necessary passage for the cultivation of the 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 encumberance. This easement is not compulsory if the isolation of the immovables is due to the proprietors acts. Art. 652. Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger. Pr cp-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. (h) Easement of Passage of Water from Upper to Lower Tenements 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; neigher can the owner of the higher estate make works which will increase the burden. Cases US v. Causby (The Case of the Suicidal Chickens) Facts Causby owns a chicken farm located near a US military airport. Planes frequently passed over his buildings, causing the death of many chickens. (They flew into the walls from fright). The result was a destruction of the use of the property as a commercial chicken farm. Causby et al have also been frequently deprived of sleep. The Court of Claims found that the US had taken an easement over Causbys property, which had depreciated in value. Held There is a taking. Pumpelly v Green Bay: If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete as if the US had entered upon the surface and taken exclusive possession of it. Though it would only be an easement of flight which was taken, the easement, if permanent & not merely temporary, normally would be the equivalent of a fee interest. The facts that the planes never touched the ground is irrelevant. It would be an exercise of complete dominion and control over the surface. The use of the airspace above the land would limit the utility of the land and cause a diminution in its value. Lunod v. Meneses Facts Plaintiffs own farmlands situated near a lake. Meneses owns a fishpond and piece of land between the lake and

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PROPERTY REVIEWER
a river. The plaintiffs claim the existence, in favor of their rice fields, of a statutory easement permitting the flow of water over Meneses land. This allowed water collected upon their land and the lake to flow through Meneses land and into the river. Meneses converted his land into a fishpond and prevented the free passage of the water through said place into the river. Plaintiffs lands were flooded and their plantations destroyed. Held Meneses cannot block the flow of water. Art 552 (Art 637 NCC): Lower estates must receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stone or earth which they carry with them. Neither may the owner of the lower estate construct works preventing this easement, nor one of the higher estates works increasing this burden. In addition, under the Law of Waters, Meneses had no right to construct the works which block the passage through his land and the outlet to the river. Having done so, to the detriment of the easement charged on his estate, he violated the law. While Art. 388 (Art 433 NCC) permits every owner to enclose his estate, his right is limited by the easement imposed upon his estate. (i) Easement of Drainage Art. 676. Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest and establishing aconduit for the drainage in such manner as to cause the least damage to the servient estate after payment of the property indemnity. (j) Easement of aqueduct Art. 644. The easement of aqueduct for private interest cannot be imposed on buildings, couryars, annexes, or outhouses, or on orchards or gardens already existing. (k) Lateral and Sub-adjacent Support. Art. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void. Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected. Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owner of adjacent lands.

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