Property 452 Reviewer-[Vena Verga] Property Midterms Reviewer

PROPERTY REVIEWER Midterms, First Semester, Ay 2005 - 2006 Atty. E. Robles PROPERTY •

The right and interest which a man has in lands and chattels to the exclusion of others

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The role and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe The right to possess, use, enjoy, and dispose of a thing

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The free use and enjoyment by a person of all his acquisitions, without any control or diminution, save only by the law of the land

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It means the thing possessed but it may include the right to use and enjoy it

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It is a thing owned, that to which a person has or may have a legal title

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It is an aggregate of rights which are guaranteed and protected by the government, and, in the ordinary sense, indicates the thing itself, rather than the rights attached to it

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It embraces every species of valuable right and interest, including real and personal property, easements, franchises, and hereditaments; it includes money, credits, a debt;

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All things are not the subject of property; the sea, the air and the like cannot be appropriated, every one may enjoy them, but he has no exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them or from interfering about them, it is plain that no person besides the proprietor, who has the exclusive right, can have any claim either to use them, or to hinder him from disposing of them as he pleases: so that property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person without any consideration, or even throwing them away

Vena V. Verga

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Property is also said to be, when it relates to goods and chattels, ABSOLUTE or QUALIFIED. Absolute property is that which is our own without any qualification whatever. Qualified property consists in the right which men have over wild animals which they have reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession of them, but as soon as his possession is lost his property is gone, unless the animals go animo revertendi. But property in personal goods may be absolute or qualified without any relation to the nature of the subject-matter, but simply because more persons than one have an interest in it, or because the right of property is separated from the possession. A bailee of goods, though not the owner, has a qualified property in them; while the owner has the absolute property

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Property is lost by the act of man by: 1. Alienation; but in order to do this, the owner must have a legal capacity to make a contract 2. Voluntary abandonment of the thing; but unless the abandonment be purely voluntary the title to the property is not lost; as if things be thrown into the sea to save the ship, the right is not lost. But even a voluntary abandonment does not deprive the former owner from taking possession of the thing abandoned at any time before another takes possession of it

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Property is lost by operation of law by: 1. The forced sale, under a lawful process, of the property of a debtor to satisfy a judgment, sentence, or decree rendered against them, to compel him to fulfill his obligations 2. Confiscation, or sentence of a criminal court 3. Prescription 4. Civil death 5. Capture by a public enemy

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Property is lost by the act of God

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It is proper to observe that, in some cases, the moment that the owner loses his possession, he also loses his property or right in the thing; animals ‘ferae naturae’ belong to the owner only while he retains the possession of

Property Midterms Reviewer with Senor’s Notes them. But, in general, the loss of possession does not impair the right of property, for the owner may recover it within a certain time allowed by law •

(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object;

referring to the historical development of the law relating to chattels, it is said that possession is prima facie evidence of ownership. The man with the better right to possession has the property.

CODAL and NOTES:

(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements;

Art. 414. All things which are or may be the object of appropriation are considered either: (1) Immovable or real property; or (2) Movable or personal property.

(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works;

Why is it important to distinguish: The government has a continuous effort to collect taxes against real properties In the field of criminal law, the distinction is also important. Example: the definition of theft: Article 308, the taking of personal property. If you got real property, then the crime is not theft. Usurpation of property can take place only with respect to real property. In procedure, actions concerning real property are brought to the RTC where the property or any part thereof lies. Actions involving personal property are brought in the court were the defendant or any of its defendants reside or may be found or where the plaintiffs reside at the election of the plaintiff. In recovering properties: real property – an action for forcible entry and unlawful detainer. Personal property – provisional remedy of replevin or manual delivery of personal property. In prescription – the determination of the prescriptive period depends on whether the property is real or personal. Real properties has a longer period. Generally, transactions involving real property must be recorded in the registry or property to affect third persons. This is not required with respect to personal property except in the case of chattel mortgage. In contract, real properties must be in writing, Art. 1358, the necessary solemnities and forms must be observed. Real properties: must be in writing and in a public instrument and registered so that it will be known to the whole world.

(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included;

Art. 415. The following are immovable property: (1) Land, buildings, roads and constructions of all kinds adhered to the soil; (2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; Vena V. Verga

(7) Fertilizer actually used on a piece of land; (8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; (9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; (10) Contracts for public works, and servitudes and other real rights over immovable property. (334a) Note: 1. Those in paragraph 1 and 2 and immovable BY NATURE. 2. Those in paragraph 3 are immovable BY INCORPORATION 3. Those in paragraph 4-9 are immovable BY DESTINATION/INTENTION 4. those in paragraph 10 are immovable BY ANALOGY, classified by express provision of law its regarded as limited to the immovable property. Art. 419. Property is either of public dominion or of private ownership. 1. 2.

Public dominion or property owned by the State (or its practical subdivision) in its public or sovereign capacity. Private ownership or property owned by: (a) the state in its private capacity, and is known as patrimonial property (b) private persons.

What distinguishes public domain from the rest? August 2005

Property Midterms Reviewer with Senor’s Notes Property of public domain is: 1. outside the commerce of man 2. cannot be a lawful object of a contract 3. cannot be a subject of debt 4. cannot be subject of attachment or sold at public auction 5. cannot be burdened with easement 6. cannot be registered. Other properties of the state: Patrimonial property 1. Public dominion: land used by the state for public use 2. That which the state has in its private character: patrimonial property more specifically: properties of the state owned by it in its private or proprietary capacity (e.g. cemeteries, slaughter houses).

In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away. STEVENS VS. STATE 35 Am. Dec. 72 Doctrine: Property is defined as consisting in the free use, enjoyment and disposition by a person of all his acquisitions. Without control or diminution save only by the laws of the land. The right of every person to acquire, possess and protect property cannot be questioned.

PUBLIC LAND VS. PRIVATE LAND

Facts: Plaintiffs were taxed one thousand dollars for keeping two billiard tables for a period of six months. They now question the validity of such enactment stating that the billiard table should be viewed as a “property” which under the law, every person has an indefeasible right of acquiring, possessing and protecting. The billiard table should have been taxed only according to its value.

PUBLIC LAND PATRIMONIAL LAND

Issue: W/N the enactment prohibiting a person from making or keeping a billiard table without first paying tax for the privilege of keeping it is unconstitutional.

Art. 423. The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property. (ex. zoos, parks etc.).

Public dominion; cannot be sold A part of public dominion but not public land; can be sold

DOCTRINES AND CASE DIGESTS : SOULARD VS. US 7 L.Ed. 938 (1830) Doctrine: Property as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights, which lie in contract; those, which are executory; as well as those which are executed. Facts: Titles to lands in Lousiana were incomplete when the state was transferred to the United States. The practice under the Old Spanish government was for the deputy governor to place individuals in possession of small tracts of lands and thereafter protect that possession without further proceeding. If there are any intrusions in these possessions, a complaint is filed to the supervising officers who adjudicated the disputes. These titles remained incomplete under the new colonial government. It was said that the new government lacked funds thus, it remunerated services rendered by the citizens with land instead of money. Appellants filed the complaints in order to try the validity of their claims to certain lands in Missouri, which they claimed to have been granted to them under the former Spanish government. The court, in resolving the present case defined property in lands as used in the Louisiana Treaty. Issue: What is property as defined in the Louisiana Treaty? Decision: The court was not able to form judgment. Nonetheless, it defined the term property as follows: Property as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights, which lie in contract; those, which are executory; as well as those which are executed. Vena V. Verga

Decision: Property is defined as consisting in the free use, enjoyment and disposition by a person of all his acquisitions. Without control or diminution save only by the laws of the land. The right of every person to acquire, possess and protect property cannot be questioned. However, the said property may only be taxed based on its proportionate value. The state is only allowed to regulate the use of property as far as they may be necessary to prevent the destruction or injury of the property of others or a detriment to the public morals or public good. The state may not prevent the plaintiffs from keeping the billiard table through imposing taxes. The right to keep any species of property cannot by the legislature be converted into and taxed as a privilege. MAYO VS. CARRINGTON 2 Am. Dec. 580 (17910 Facts: Before Joseph Mayo died, he devised several schemes in his last will and testament whereby he said that he wanted to emancipate the slaves who served him during his lifetime. He instructed the executioner of his estate to endeavor to procure an act of emancipation from the legislature, but if the attempt failed due to fact that the law does not permit emancipation of slaves, he said that he wanted his slaves and ALL HIS PROPERTIES to go to his legatees. Paul Carington took administration of the testator’s estate and sold the personality (except for the slaves) and applied the proceeds towards payment of Joseph’s debts. The personal estate was exhausted by the debts. After which, the administrators hired the slaves and applied the profits to pay the unsatisfied creditors. Only after doing this did Carrington procured an act from the Legislative Assembly in order to emancipate the slaves. William Mayo, the heir at law of the testator questions the acts of Carrington saying that the whole device must be contingent upon the failure of the attempt to emancipate the slaves for if that did not succeed, the slaves as well as the estate August 2005

Property Midterms Reviewer with Senor’s Notes shall go to Joseph’s legatees. If it succeeded, no disposition should be made. Since the slaves were not emancipated, the undevised lands should all go William Mayo as heir at law of the testator. Key to this case is how the word “property” is used in the will of the testator. Issue: W/N the term property should only mean those things that were disposed. Decision: The word property in the will includes both real and personal. The word property comprehends everything that had not been disposed of. Generally speaking, it is applicable to land as to personalities. There was nothing in the will to confine it to personal estate. Including the slaves in the device did not have the effect of limiting it to personal property. It was a bequest of the residue of the property followed by an enumeration of personal articles. But the parts of the devise are kept separate and distinct, the slaves being mentioned first and the other property afterwards, Thus, leaving the word property unrestrained and to operate according to the usual sense of the term. Since the will provides that should the executioners fail to emancipate the slaves, said slave and ALL HIS PROPERTY would be given to certain relations. Therefore, the absolute disposition of all his properties was a correct move on the part of Carington.

express statutory declaration or unmistakable implication fixes it at the place where the tangible property from the use of which it arises is situated. MARABELLA VS. REYES 12 Phil 1 (1908) Doctrine: The delivery of title deeds of the property is equivalent in its effects to a delivery of the property itself. WALKER VS. OLD COLONY AND NEWPORT RAILWAY COMPANY 4 Am. Rep 509 (1869) Facts: Petitioner Walker owned half an acre of land with a house and other building, of which, around 1/15 was taken by the Railway company for construction of a railroad. Walker claimed for damages because of depreciation of his estate due to the proximity of the railroad to his estate and its incidental effects. Issue:

WELLS FARGO VS. MAYOR AND ALDERMEN OF JERSEY CITY 207 Fed. 871 (1913) Facts: In conducting its business, the plaintiff used a pier on the Jersey City side of the Hudson river, a terminal of the Erie railroad, as receiving and distributing point. At this terminal, it received not only the merchandise arriving on the trains but such as was collected in its metropolitan district, embracing city of New York. In making such collections and distributions, the plaintiff employed a large number of men, horses and wagons. Mob interference with the passage of such wagons and horses in the streets of Jersey City from October 26 to November 14, 1910 occasioned the business losses, which the jury verdict fixed at $43,000. Whether the business losses sustained by the plaintiff may be recovered would depend on the construction of the New jersey act entitled “An act to prevent routs, riots and tumultuous assemblies” Section 5 of such Ac provides that whenever any building or other real or personal property shall be destroyed or injured, in consequence of any mob or riot, the city in which the same shall occur, or if not in a city, then the county in which such property was situated shall be held liable to an action for the damages sustained by reason thereof. It is the contention of the plaintiff that it is the location of the mob violence and not the property destroyed or injured which is the deciding factor of the city’s liability. Issue: W/N it is the place where the mob originated or operated and not the property destroyed which is the deciding factor of the city’s liability. Decision: It is the property destroyed which is the deciding factor of the city’s liability. However, such liability for destruction or injury of property by rioters should be limited to tangible properties. The word “property” as ordinarily used means the thing possessed, but it may include the right to use and enjoy it. The more comprehensive meaning is presumed to have been interceded by the use of such a word in a constitution. Property embraces business and as such has a situs, which ordinarily is at the place of the domicile of the owner, unless an Vena V. Verga

W/N damages should be awarded W/N incidental effects may be a basis for damages

Decision: The owner is entitled to compensation for the injury to the value of his whole lot as is occasioned by the appropriation of a part of it. One of the valuable incidents of the ownership of land is the right and power of exclusion. Compensation for the abridgement of this right should be included in the damages. However, incidental effects which are the natural and inevitable consequences of the exercise of the legislative franchise which cannot be made a ground for the recovery if damages as for a private injury. EATON vs. BOSTON 12 Am. Rep. 147 (1871) Facts: Boston Concord and Montreal Road built their road across plaintiff’s farms. They already paid damages that were assessed thus said corporations were already released from all claim of damages on account of the construction of the road across said farms. However, as the corporation constructed their project road, they made a deep cut through a ridge of land which protected the meadow farms from freshets or a sudden rise in the level of stream or a flooding which was caused by heavy rains or the rapid melting of snow and ice. As a consequence, waters if the barriers frequently overflowed and carried sand, debris etc to plaintiff’s land. Issue: W/N plaintiffs can still recover damages considering one has already been paid. Decision: Yes. Land is not “property” but the subject of property. The term “property” although commonly applied to a tract of land or chattel, may mean only the rights of the owner in relation to it. It denotes a right over a determinate thing. Property is the right of any person to possess, enjoy, and dispose of a thing. So partial, but substantial restriction of the right of the user, although it may not annihilate all of his rights, may as well be considered as taking of his

August 2005

Property Midterms Reviewer with Senor’s Notes property. If the public can take part of a man’s property without compensation, they can, by successive taking of the different parts, soon acquire the whole.

To To To To To

recover the property from any holder or possessor exclude any person from the enjoyment an disposal of the property enclose or fence his land or tenement just compensation in case of eminent domain construct any works or make any plantation or excavation on the surface or subsurface or his land To the ownership of all or part of hidden treasures found in his property To the ownership of all accessions to his property.

PRITCHARD vs. NORTON 27 L.Ed. 104 (1882) Doctrine: A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of common law, it is not competent for the legislature to take it away. A vested right to an existing defense is equally protected, saving only those which are based on informalities not affecting substantial right, which do not touch the substance of the contract and are not based on equity and justice.

OWNERSHIP •

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That independent right of a person to the exclusive enjoyment and control of a thing including it disposition and recovery subject only to the restrictions established by law and the rights of others Limitations upon the right of ownership 1. 2. 3. 4. 5.

General limitations imposed by the State for its benefit such as the power of eminent domain, the police power, and the power of taxation Specific limitations imposed y law, such as legal servitudes Limitations imposed by the party transmitting the property either by contract or by will Limitation imposed by the owner himself such as voluntary servitudes, mortgages, lease rights and pledges Inherent limitations arising from conflict with other rights, such as those caused by contiguity of property.

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the right by which a thing belongs to someone in particular, to the exclusion of all others

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the entirety of the powers of use and disposal allowed by law. It implies that there is some power of disposal; but the owner of a thing is not necessarily the person at a given time has the whole power of use and disposal. Ownership is broader than possession

CODAL and NOTES: Art. 427. Ownership may be exercised over things or rights Rights of a person over his property: To enjoy the property To dispose of the property Vena V. Verga

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. Traditional attributes or elements of ownership: 1. The right to enjoy, which includes: a. jus utendi, or the right to use; b. jus fruendi, or the right to enjoy the fruits; c. jus abutendi, or the right to consume the thing by its use, 2. The right to dispose (jus disponendi), or the right to alienate or destroy the property. The right to vindicate (jus vindicandi) or the right of action available to the owner to recover the property against the holder or possessor. Remedies available to owners: 1.

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Replevin – for movable properties under Rule 60 of the Revised Rules of Court that is available upon the concurrence of the following requisites: a. affidavit of entitled ownership b. wrongful detainer of adverse party c. no seizure or attachment have been issued d. the actual market value of the property. Remedies for immovables a. action for forcible entry (Rule 90) – in case of use of force without the consent of the owner b. an action for unlawful detainer -- in cases where the property was unlawfully withheld after termination of contract; entry was lawful because there was a consent from the owner but since the property was withheld, there is unlawful detainer. c. accion publiciana – real action for recovery after a year of possession d. accion reivindicatoria – real action for recovery of ownership after 10 years.

Article 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 reasonable necessary to repel an actual or threatened unlawful physical invasion or usurpation of his property. August 2005

Property Midterms Reviewer with Senor’s Notes Note: This is the Doctrine Of Self Help where the law has given a person a right to counter force with force. Requisites: 1. the force must be employed by the owner or lawful possessor of the property 2. there must be an actual or threatened physical invasion or usurpation of the property. 3. the invasion or usurpation must be unlawful and 4. the force employed must be reasonably necessary to repeal the invasion or usurpation. 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 owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. Note: Difference between Article 429 and Article 432: 1. The law states that you can use force to repel a person from unlawfully possession your property. But once possession has been taken away from the owner, he can no longer use force; he must use lawful means to recover his property. 2. the law will never sanction force as a means of acquiring property. Force is only used in repelling a person. Lawful means must b used in recovering the property. 3. In using Article 432, there should e no malice, law allows the owner to protect his property and if necessary, he may destroy the property of others so long as the damage done is less than what should have been of not so for the acts (PRINCIPLE OF NECESSITY). Civil code allows compensation for property that was destroyed in order to prevent further damage. 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. Note: since this is only a presumption, it is not conclusive and can still be challenged. The possessor can enjoy ownership until it has been proven that he is not the owner. The real owner cannot use for or violence to regain the property because no one is justified to take the law into his own hands. This presumption is not true with things that are personal where ownership is conclusively presumed. If the thing needs a title, mere possession does not establish ownership.

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. Vena V. Verga

Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession. (349a) 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. OWNER •

More superior than possessor because 1. The owner reports to no one; possessor reports to the owner 2. Possession is effectively equivalent to ownership.

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He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right

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Although there can be but one absolute owner of a thing, there may be a qualified ownership of the same thing by many. Thus, a bailor has the general ownership of the thing bailed, the bailee has the special ownership. The right of the absolute owner is more extended than that of him who has only a qualified ownership: as, for example, the use of the thing. Thus, the absolute owner of an estate, that is, an owner in fee, may at the wood, demolish the buildings, build new ones, and dig wherever he may deem proper for minerals, stone, plaster and similar things, which would be considered waste and would not be allowed in a qualified owner of the estate, as a lessee or a tenant for life

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The owner continues to have the same right although he performs no acts of ownership or be disabled from performing them, and although another performs such acts without the knowledge or against the will of the owner. But the owner may lose his right in a thing if he permits it to remain in the possession of a third person for a sufficient time to enable the latter to acquire title to it by prescription or under the statute of limitations

CASES AND DOCTRINES PHILIPPINE CASES TAYAG vs. YUSECO Facts: Joaquin Yuseco, an attorney leased the land of Maria Lim who was the latter’s client. To show her appreciation, Maria Lim offered to Joaquin and his wife to build a house in Hacienda San Lazaro so long as she (Maria) lives. Joaquin constructed a big house on the land thinking he had a righ to do so in view of the intended donation. Just before Maria died, she sold the land to her daughter Belen Tayag who in turn demanded from Yuseco either to remove his house or pay a rent. When Yuseco failed to pay, Tayag brought an action in the court. August 2005

Property Midterms Reviewer with Senor’s Notes Issues: W/N W/N W/N W/N

there was an intended donation. Yuseco should pay the rent. Yuseco is a builder in good faith of the house the case should prosper.

Decision: 1. No, there was no public instrument executed between Yuseco and Lim, thus the formalities of a donation was not complied with. 2. Yuseco should pay the rent from the time Lim sold the property to Tayag because insofar as Lim was concerned, the lease was gratuitous. 3. Yes, Yuseco was a builder in good faith since he though that the land was already his by donation. 4. Yes, for non-payment of rental, without prejudice to the determination of the right of each, particularly regarding the building. REPUBLIC VS. LARA 50 OG 5778 (1954) Facts: Lara owned a parcel of land, which the Japanese took over during the occupation and over which they built a concrete airstrip, runway and taxiway. After the war, the government decided to expropriate the lands. Issue: W/N the government should pay the improvements to the owner. Decision: No, because said improvements really belong to the republic, which as victor in the last war should be considered as the legitimate successor to the properties, owned by the Japanese in the Philippines. It is wrong to say that the Japanese army was a possessor in bad faith, and that therefore constructions by them belong to the owner of the land by industrial accession. This is because in the first place, the rule of Civil Code concerning industrial accession are not designed to regulate relations between private persons and a sovereign belligerent, nor intended to apply to construction made exclusively for prosecuting a war, when military necessity is temporarily paramount. In the second place, international law allows the temporary use by the enemy occupant of private land and buildings for all kinds of purposes demanded by necessities of war. The owner of the land expropriated by the government is entitled to recover legal interest on the amount awarded from the time the state takes possession of the land. MIRANDA vs. FADULLON 51 OG 5778 Facts: In the year 1939, one Lucio Tio was the owner of a parcel of land at the Banilad Estate in Cebu. Lucio executed a power of attorney in favor of Esteban Fadullon. Such was annotated at the back of the transfer certificate title. On the same date, the deed of mortgage in favor of the Cebu Mutual Building and Loan Association was also annotated on the same certificate of title. In 1946, on the strength of said power of attorney, Fadullon sold the property to spouses Dionisio and Clemencia Segarra with right to repurchase within 30 days. Fadullon failed to Vena V. Verga

repurchased. 10 days after the expiration of the period, Segarras filed a petition for the consolidation of their ownership and registered said petition with the register of deeds. Lucio filed a complaint with the CFI asking it to annul the sale. It turned out that the Segarras introduced improvements in the property. They are now contending that they were possessors in good faith of the lot in question and that they introduced improvements also in good faith thus, if the plaintiff would not pay the amount of the improvements which was pegged at Php 5,3000.00, they should be allowed to buy the land. Issue: W/N the possessor were in good faith. Decision: The spouses were in bad faith for they very well knew of the encumbrance in the TCT. They should have at least inquired as to the authority of Fadullon to sell the property. They did not even require Fadullon to show his power of attorney. This together with the fact that there was a very short period of time for repurchase are indications that there might be collusion between the Segerras and Fadullon. A builder in good faith my no be required to pay rentals. He has a right to retain the land on which he has built in good faith until he is reimbursed the expenses incurred by him. Possibly, he might be required to pay rental only when the owner of the land choose not to appropriate the improvement and required the builder in good faith to pay the land. But in case the builder is unwilling or unable to buy the land, the landowner decides to leave things as they are and assumes the relation of lessor and lessee, then they might go to court to fix the amount of the rental if they cannot agree on it. The very fact that the courts sentenced the defendants to pay rentals is an indication, even proof that they were considered possessors and builders in bad faith, or at least that they were not possessors and builders in good faith. SAN DIEGO VS. MONTESA G.R. L-177985 29 September 1962 Facts: Complainant Jose, Maria and Urbano de la Cruz filed a complaint to recover their land plus damages against Gil and Rufina San Diego. The said land was sold by the mother of the complainants to the San Diegos. The lower court held that the parcel of land belonged to the plaintiffs through hereditary succession and that the defendants built a house on said land in good faith. The court however voided the sale on the ground that that the mother had no right to the land. However, it upheld the defense of the defendants as builder in good faith. It ordered the San Diegos vacate the land while the complainants were ordered to pay Php 3,500 within 30 days after the decision becomes final. Issue: W/N the decision of the court that the San Diegos should vacate the land is valid. Decision: the right of retention granted to possessor in good faith by Article 546 of the civil code, which is applicable to builder in good faith (Article 448) is merely a security for their right to be indemnified for the improvements made on the land. Hence they are not bound to pay the rent during the period of retention. Although normally the landowner has the option to either appropriate the August 2005

Property Midterms Reviewer with Senor’s Notes improvement or to sell the land to the possessor in good faith, this option is no longer open to the landowners in the present case, because the judgment in question, which limits them to the first alternative, is already final.

1. 2. 3.

US CASES

4. TURNER VS. CROSS 18 S.W. 578 Doctrine: The owner is said to be the one who has dominion of a thing, real or personal, corporeal or incorporeal, which he has aright to enjoy and to do with as he pleases, even to spoil or destroy it. so far as the law permits unless he be prevented by some agreement or covenant which restrains his rights. Both words convey the idea of property in the thing is right of the person who is said to be the proprietor or owner. FLEMMING vs. SHERWOOD 139 N.W. 101 Doctrine: The owner of the thing is said to be one who has a dominion over a thing real or personal. Corporeal or incorporeal, which he has a right to enjoy and to do as he pleases, even to spoil or destroy it as far as the law permit. JHOHSON VS. CROOKSHANKS 29 Pac. 78 Doctrine: In an action to recover the possession of real property, the plaintiff must have legal estate in the property, which it is sought to be recovered, and a present right of possession thereof and this complaint must tender an issue as to title. The word owner is a person who has dominion over a thing, which he may use as he pleases except a restrained by aw or by an agreement.

5. 6.

that which assigns to the owner of a thing its products, as the fruit of trees, the young of animals that which makes a man the owner of a thing which is made of another’s property, upon payment of the value of the material taken that which gives the owner of law new land formed by gradual deposit that which gives the owner of a thing the property in what is added to it by way of adoring or completing it that which gives islands formed in a stream to the owner of the adjacent lands on either side that which gives a person the property in things added to his own so that they cannot be separated without damage

CODAL and NOTES: NOTES 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. •

the right to all which one’s own property produces, whether that property be movable or immovable, and the right to that which is united to it by accessory, either naturally or artificially

Art. 441. To the owner belongs: (1) The natural fruits; (2) The industrial fruits; (3) The civil fruits. Note: Applying this provision and the principle of partus sequitur ventrem, the offspring belongs to the owner of the demale. Every building is an accession to the ground upon which it stands. The owner of the land is the owner of the building (General Rule). Exception to this rule: Owner of the land upon which a building is constructed shall no be considered as the principle. Thus the owner of the building shall be the owner of the land. •

ACCESSION ACCESSIO Modes of acquiring things: Accession continua (original mode) – the right pertaining to the owner of a thing over everything which is incorporated or attached thereto either naturally or artificially. Accession discreta (derivative mode) – right pertaining to the owner of a thing over everything which is produced thereby •

• •

An increase or addition; that which lies next to a thing, and is supplementary and necessary to the principal thing; that which arises or is produced from the principal thing A manner of acquiring the property in a thing which becomes united with that which a person already possesses In the Roman Law, accessio is of six kinds:

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•

If a man hath raised a building upon his own ground with the material of another, or if a man shall have built with his own materials upon the ground of another, in either case, the edifice becomes the property of him to whom the ground belongs. And the owner of the ground, if liable at all is only liable to the owner of the materials for the value of them

•

When the fruits of the property will not belong to the owner (exception to the rule that the owner of thing the natural, industrial and civil fruits provided in Article 441): 1. A possessor of a property in good faith may claim the fruits of such property; 2. A usufructuary is entitled to the fruits of the property held in usufruct; August 2005

Property Midterms Reviewer with Senor’s Notes 3. 4.

•

•

•

If the thing is in the possession of an antichretic creditor in which case such creditor is entitled to the fruits with the obligation of applying them to the interest and principal. If the thing is leased, in which case, the lessee is entitled to the fruits of the thing, although such lessee must pay the owner rentals which are in the nature of civil fruits.

Basic principles or characteristics that underlie accession continua: 1. That to the owner of a thing belongs the extension or increase of such thing 2. Accessory follows the principal. 3. The nature of the incorporation is in such a way that separation would injure or destroy either or both of the properties incorporated 4. No punitive liability shall be suffered by the person who acts in good faith; the person who acts in bad faith is punished by, among others, requiring him to pay damages Spanish Civil Code 1. If the materials of one person are united by labor to the materials of another, so as to form a single article, the property in the joint product is, in the absence of any agreement, in the owner of the principal part of the materials by accession 2. Where, by agreement, an article is manufactured for another, the property in the article, while making and when finished, vests in him who furnished the whole or the principal part of the materials; and the maker, if he did not furnish the same, has simply a lien upon the article for his pay American Courts 1. The increase of an animal, as a general thing, belongs to the owner of the dam or mother 2. If, by the labor of one man, the property of another has been converted into a thing of different species, so that its identity is destroyed, the original owner can only recover the value of the property in its unconverted state, and the article itself will belong to the person who wrought the conversion, if he wrought it believing the material to be his own. 3. If there be a mere change of form or value, which does not destroy the identity of the materials, the original owner may still reclaim them or recover their value as thus improved 4. If the change has been wrought by a willful trespasser, or by one who knew that the materials were not his own; in such case, however radical the change may have been, the owner may reclaim them, or recover their value in their new shape

ADJUNCTION •

the attachment or union permanently of a thing belonging to one person to that belonging to another. This union can be caused by INCLUSION, as if one man’s diamond be set in another’s ring; by SOLDERING, as if one’s guard be soldered or another’s sword; by SEWING, as by employing the silk

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of one to make the coat of another; by CONSTRUCTION, as by building on another’s land; by WRITING, as when one writes on another’s parchment; or by PAINTING, as when one paints a picture on another’s canvass •

in these cases, as a general rule, the accessory follows the principal; hence those things which are attached to the things of another become the property of the latter. The only exception which the civilians made was in the case of a picture, which, although an accession, drew to itself the canvas, on account of the importance which was attached to it

APPURTENANCES •

things belonging to another thing as principal, and which pass as incident to the principal thing

•

the thing appurtenant must be of an inferior nature to the thing to which it is appurtenant

•

to constitute an appurtenance, there must exist a propriety of relation between the principal or dominant subject and the accessory or adjunct, which is to be ascertained by considering whether they so agree in nature or quality as to be capable of union without incongruity

•

thus, if a house and land be conveyed, everything passes which is necessary to the full enjoyment thereof and which is in use as incident or appurtenant thereto

•

appurtenance of a ship include whatever is on board a ship for the objects of the voyage and adventure in which she is engaged, belonging to her owner

•

the word appurtenances in a deed will not usually pass any corporeal real property, but only incorporeal easements or rights and privileges

OUTLINE OF ACCESSION INDUSTRIAL A – owner of the land B – Builder, planter or sower C – owner of materials Art. 447. The owner of the land who makes thereon, personally or through another, plantings, constructions or works with the materials of another, shall pay their value; and, if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages. •

RULES: August 2005

Property Midterms Reviewer with Senor’s Notes

1.

ABC are all in good faith AB has a right of appropriation C has (1) a right of reimbursement and (2) limited right of removal. 2. AB are in good faith; C is in good faith • AB has no right • C has: (1) right of reimbursement plus damages and (2) absolute right of removal plus damages. Art. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. RULES:

1. If ABC are in good faith A has (1) right of appropriation and (2) right to demand price of land or rent BC has (1) right of reimbursement or necessary and useful expenses and (2) right of retention if A elects first option 2. A is passive while B is in good faith • A can appropriate but should reimburse necessary/useful expenses to possessor in good faith and good faith B can remove ornaments provided that there is no injury. • A can oblige B to pay price of the land or rent but B cannot be obliged when land is considerably higher than building, etc. He shall pay rent instead when owner does not appropriate (indemnity) 3. A is passive while B is in bad faith • A need not pay (there is no unjust enrichment for such applies only to quasi contractu) 4. The only by which B can get his materials for value is when A and B are in bad faith 5. If both A and C are in good faith, only B in bad faith, Article 455 shall apply

Art. 455. If the materials, plants or seeds belong to a third person who has not acted in bad faith, the owner of the land shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay. This provision shall not apply if the owner makes use of the right granted by article 450. If the owner of the materials, plants or seeds has been paid by the builder, planter or sower, the latter may demand from the landowner the value of the materials and labor.

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RULE: 1.

2.

A in good or bad faith; B in good faith or bad faith; C in good faith. (a) determine rights of A and B (b) then C can hold B primarily liable and A subsidiarily liable except under Art. 450. A in good or bad faith; B in good faith or bad faith; C in bad faith. (a) Determine rights of A and B (b) Apply 449-452 to C since B shall be considered agent of C.

Note: Art. 448 is not applicable in the following instances: 1. In cases of co-ownership since in co-ownership, ownership is vested in two or more persons. It is revolting to reprive a co-owner of his property. 2. In cases of usufruct 3. In cases of lease 4. In case a person who owns a house and lot sells only the lot but not the house 5. In relations between private persons and sovereign belligerent 6. Constructions made exclusively for prosecuting a war, when military necessity is temporarily paramount 7. When the parties concerned (landowner – builder, etc), agree on terms and conditions not contemplated by the said article, it not being mandatory • An action to quiet title of real property not in the possession of another does not prescribe. If the real property is in the possession of another, it may be acquired by acquisitive prescription Art. 449. He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity. Art. 450. The owner of the land on which anything has been built, planted or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted or sowed; or he may compel the builder or planter to pay the price of the land, and the sower the proper rent. Rules:

1. •

A is passive and B is in bad faith A may (1) demand demolition/removal so that there is restoration at the expense of B or (2) compel payment of price of kind from B (builder and planter), rent from B (sower). • A entitled to damages from B 2. A is bad faith; B is good faith, 447 will apply.

Art. 451. In the cases of the two preceding articles, the landowner is entitled to damages from the builder, planter or sower. Art. 452. The builder, planter or sower in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land. August 2005

Property Midterms Reviewer with Senor’s Notes Rules:

1. •

•

A is in good faith; BC is in bad faith A has (1) right of appropriation plus damages, (b) right to demand removal or demolition plus damages, (3) right to demand price of land or rent plus damages B and C have no right except reimbursement of necessary expenses for preservation of the land.

Art. 453. If there was bad faith, not only on the part of the person who built, planted or sowed on the land of another, but also on the part of the owner of such land, the rights of one and the other shall be the same as though both had acted in good faith. It is understood that there is bad faith on the part of the landowner whenever the act was done with his knowledge and without opposition on his part.

Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. Art. 458. The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural decrease of the waters, or lose that inundated by them in extraordinary floods.

•

alluvion differs from avulsion in that the latter is sudden and perceptible

CASES AND DOCTRINES BERNARDO VS. BATACLAN 66 Phil. 590

Rule: A, B and C are in Bad Faith, Article 448 will apply.

Issue: W/N the indemnity should be paid by a vendee who brought a land from the owner who alienated said land after improvements were made.

Art. 454. When the landowner acted in bad faith and the builder, planter or sower proceeded in good faith, the provisions of article 447 shall apply. (n)

Doctrine: Although the obligation to pay the required indemnity may be directed by the builder, planter, or sower against the transferee, ultimately, the obligation must be borne by the party who has profited from the accession. The reason for this is that in purchases of land and the improvements thereon, the purchaser may have already paid the vendor the value of the improvements and it would be unjust to make him pay again to the builder, planter and sower. Consequently, it the purchaser had already paid to the vendor the value of the improvement, the latter must pay the required indemnity, if not, the former must be the one who shall pay.

Rule: A in bad faith; BC in good faith, Art. 447 will apply. ALLUVION •

that increase of the earth on a bank of a river, or on the shore of the sea, by the force of the water, or by a current or by waves, or by its recession in a navigable lake, which is so gradual that no one can judge how much is added at each moment of time. Conversely, where land is submerged by the gradual advance of the sea, the sovereign acquires the title to the part thereby covered and it ceases to belong to the former owner

Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Note: This being regarded as the equivalent for the loss he may sustain from the encroachment of the waters upon his land AVULSION

•

Accretion which takes place whenever the current of a river, creek, torrent or lake segregates from an estate on its bank a known portion of land and trans it to another estate.

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MENDOZA vs. DE GUZMAN 52 Phil 164 Issue: W/N the owner of the land is entitled with the natural, industrial and civil fruits during a period of retention. Doctrine: The natural industrial and civil fruits pertain to the owner of the land and not to the builder, planter or sower. The reason is obvious. Only a possessor in good faith is entitled to the fruits of the property as provided in Articles 544 and 545. In the case at bar, the builder, sower and planter is no longer in good faith; he is already aware of the fact that he is in possession of said property improperly or wrongfully. CO-OWNERSHIP. SAN DIEGO vs. MONTEZA 6 SCRA 207 Issue: W/N builder, planter or sower be compelled to pay rentals. August 2005

Property Midterms Reviewer with Senor’s Notes Doctrine: The period of retention, the builder, planter or sower cannot be compelled to pay rentals. It is evident that the right of retention is a security for the payment of the required indemnity. To require him to pay rentals during such period would result in the impairment of said security. FILIPINAS COLLEGES INC. VS, TIMBANG 106 Phil 247 Issue: W/N the owner automatically becomes the owner of the improvements if the builder in good faith fails to pay after the former compelled latter by virtue of Art. 448. W/N there is remedy left to the owner in case he does not automatically become the owner of the land. Doctrine: Under Article 448 and 546 of the Civil Code, the owner of the land has the right to choose between appropriating the building by reimbursing the builder the value thereof or compelling the builder to pay for his land. Even this second right cannot be exercised if the value of the land s considerable more than that of the building. In addition to the right of the builder to be paid the value of his improvement, Article 546 gives him the corollary right of retention of the property until he is indemnified by the owner of the land. There is nothing in the language of these articles which would justify the conclusion that upon failure of the builder to pay the value of the land, when such is demanded by the landowner, the latter becomes the automatically the owner of the improvement. The Code is silent however on the other remedies available to the owner. In Miranda vs. Fadullan, the court said that the parties may decided to leave things as they are and assume the relation of lessor and lessee, and should they disagree as to the amount of rental, them they can g to the court to have the amount fixed. Likewise, in Ignacio vs. Hilario, the SC ruled that the owner if the land is entitled to have the improvement removed when after having chosen to sell his land the builder in good faith fails to pay for the same. In Bernardo vs. Bataclan, the SC approved the sale of the land and improvement in a public auction, applying the proceeds thereof first to the payment of the value of the land and the excess, if any to be delivered to the owner of the house in payment thereof. GRANA and TORALBA vs. CA 109 Phil 260 Facts: The petitioner brought an action for recovery of a lot after the private respondents unknowingly built a portion of their house on a lot owned by the petitioner. The trial court, after trial ordered the former to vacate the land and to pay a monthly rental of Php 10.00 from the filing of the complaint. Issue: W/N the order of the court is correct. Decision: The respondents are in good faith, consequently under, Article 448 of the Civil Code, the petitioners have the choice of either appropriating the portion of the house of respondents which is on their land upon payment of the proper indemnity, or selling to the respondent that part of the land on which the Vena V. Verga

improvements stands. The second option is more practical however, the parties must come into agreement as to the condition of the lease and should they fail to do so, the court shall fix the same (Article 448). Thus, the order for rental payment is erroneous. A builder in good faith has a right to retain the land on which he has built in good faith until he is reimbursed the expenses incurred by him. BAKER vs. MERSCH 45 NW 685 Doctrine: The doctrine of accession of property applies where one has willfully, as a trespasser, taken the property of another, and altered it, in substance or form, by his own labor. Where however, the appropriation was through a mistake of fact, and labor has been expended upon it which converts it into something very different from the original article, and greatly increases its value, and the value of the original is very insignificant in comparison with the new product, the title of the property in its converted form will pass to the person who has thus expended labor; the original owner to recover the value of the original article. Art. 466. Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value. MERRIT VS. JOHNSON 5 AM Dec (1811) Doctrine: The principle of law when the materials of another are united to material of mine, by my labor or by labor of another and mine are the principal materials, and those of the other are only accessory, I acquire the right of property in the whole by right of accession. The accessory follows the principal and not the other way around. FOSTER vs. WARNER 14 NW 673 Doctrine: Whatever he might have had against Farmer as a consequence of his wrongful intermixture or confusion of the shingles, in case there was any, to seize and hold the required quantity out of the common mass, he had no such right against the plaintiffs, who according to this record were innocent purchasers from Farmer because it was due to the defendant’s trust in farmer that he was enabled to deal with them as he did and obtain money as through he was the sole and absolute proprietor of the property.

Art. 470. Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffered.

August 2005

Property Midterms Reviewer with Senor’s Notes If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have a right to choose between the former paying him its value or that the thing belonging to him be separated, even though for this purpose it be necessary to destroy the principal thing; and in both cases, furthermore, there shall be indemnity for damages. WILLIARD vs. RICE 45 AM DEC 226 Doctrine: A mortgagor entrusted with the possession of goods has the duty to keep them separately and preserve the mortgagor’s property. His intermixing them purposely or through want of proper care, was a violation of his duty, and is unlawful. As his own could not be distinguished, he could take none of the mixed parcel without taking the plaintiff’s which he had no right to do; and as against his consignees, the plaintiff must hold the whole. QUIETING OF TITLE

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The best way to quiet a title is through a good title An action may be brought to remove the clout or to quiet a title provided the following requisites are present: 1. The plaintiff must have a legal or equitable title to, or interest in, the real property which is the subject matter of the action (Article 477, CC) 2. There must be cloud on the title (Article 476) 3. Such cloud must be due to some instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable and is prejudicial to the plaintiff’s title 4. The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to the plaintiff’s benefit.

WATERCODE Underlying Principles of the Water Code All waters belong to the state. Such cannot be subject to acquisitive prescription The state may allow the use or development of waters by administrative concession The utilization, exploitation, development, conversion and protection of water resources shall be subject to the control and regulation of the government through the National Water resource council Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country (Article 3, PD 1067, Watercode) Definition of Water in the Watercode “Water” refers to water under the ground, water above the ground, water in the atmosphere, and the water of the sea within the territorial jurisdiction (Art 4, PD 1067, Watercode)

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Article 58 of the Watercode already superceded article 461: Article 461. River beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. Article 58. (Watercode) When a river or stream suddenly changes its course to traverse private lands, the owners or the affected lands may not compel the government to restore the river to its former bed; nor can they restrain the government from taking steps to revert the river or stream to its former course. The owners of the lands thus affected are not entitled to compensation for any damage sustained thereby. However, the former owners of the new bed shall be the owners of the abandoned bed proportion to the area lost by each. The owners of the affected lands may undertake to return the river or stream to its old bed at their own expense; provided that a permit therefore s secured from the Secretary of Public Works, Transportation and Communication and work pertaining thereto are commenced within two years from the changes in the course of the river or stream. The following provisions has a counterpart on the water code: Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters Watercode version (Article 51) The banks or rovers and streams and the shore of the seas and lakes throughout their entire length and within a zone of three meters in urban areas and 20 meters in agricultural areas and 40 meters in forest areas, along their margins, are subject to the easement of public us in the interest of recreation, navigation, flotage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, flotage, fishing or salvage or to build structures of any kind. Art. 502. The following are of public dominion: (1) Rivers and their natural beds; (2) Continuous or intermittent waters of springs and brooks running in their natural beds and the beds themselves; (3) Waters rising continuously or intermittently on lands of public dominion; (4) Lakes and lagoons formed by Nature on public lands, and their beds; August 2005

Property Midterms Reviewer with Senor’s Notes (5) Rain waters running through ravines or sand beds, which are also of public dominion; (6) Subterranean waters on public lands;

by law as in conjugal partnership by will by chance as in confusion or commotion •

Requisites of co-ownership: 1. plurality of subjects 2. unity of object (absence of division) 3. proportionate shares of such subjects

(8) Waters rising continuously or intermittently on lands belonging to private persons, to the State, to a province, or to a city or a municipality from the moment they leave such lands;

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Kinds of co-ownership: 1. ordinary (where right of partition exists) 2. compulsory (no right of partition; e.g. party wall)

(9) The waste establishments.

Art. 490. Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which they should contribute to the necessary expenses and there exists no agreement on the subject, the following rules shall be observed:

(7) Waters found within the zone of operation of public works, even if constructed by a contractor;

waters

of

fountains,

sewers

and

public

Watercode version (Article 5) The following belong to the state:

(1) The main and party walls, the roof and the other things used in common, shall be preserved at the expense of all the owners in proportion to the value of the story belonging to each;

1. Rivers and their natural beds; 2. Continuous or intermittent waters of springs and brooks running in their natural beds and the bed themselves;

3. Natural lakes and lagoons; 4. All other categories of surface waters such as water flowing 5. 6. 7.

over lands, water form rainfall whether natural or artificial, and water from agriculture runoff, seepage and drainage Atmospheric water Subterranean or ground water; and Sea water

GENERAL RULE: No person including the government instrumentalities or government owned or controlled corporation shall appropriate water without a water right, which shall be evidence by a document known as a water permit. However, any person may appropriate or use natural bodies of water without securing a water permit. Logs floating in the river may be legal provided they are not placed there permanently (there is a need for permit if the logs are to be placed in the river permanently) Article 60 of the watercode provides that the rafting of logs and other objects on rivers and lakes which are floatable may be controlled or prohibited during designated season of the year with due regard to the needs of irrigation and domestic water supply and other uses of water. CO - OWNERSHIP •

(2) Each owner shall bear the cost of maintaining the floor of his story; the floor of the entrance, front door, common yard and sanitary works common to all, shall be maintained at the expense of all the owners pro rata;

How co-ownership created: by contracts

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(3) The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro rata, with the exception of the owner of the ground floor; the stairs from the first to the second story shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first story; and so on successively. Note: a party wall cannot be divided while two parties remain co-owners of said wall. The only solution is to buy said party wall, and destroy it. You may not destroy a party wall unless its yours.

3. 4. 5. 6. 7. •

legal (created by law) contractual (created by contract) universal (over universal things; e.g. co-heirs in inheritance) singular or particular (over a particular or specific thing) incidental (exists independent of the will of the parties)

Characteristics of co-ownership: the co-owner’s share in the property, although definite in amount or size, is not physically and actually identified, it being merely an ideal; a co-owner’s share is absolutely owned by him and he may dispose of it as he pleases August 2005

Property Midterms Reviewer with Senor’s Notes in regard to the use, enjoyment and preservation of the property, the coowners observe mutual respect Ordinary partnership distinguished from co-ownership: DISTINCTION CO-OWNERSHIP PARTNERSHIP As to creation Created by law, contract, Created by the succession, fortuitous agreement of event parties/contract As to No juridical personality There is a juridical personality personality distinct from the partners. Duration There is limitation No limitation upon duration of partnership Power of the No power to represent the Partners has the power members co-ownership unless there to represent the is an agreement to that partners, unless there is effect a stipulation to the contrary Disposition of A co-owner may ordinarily Transfer of shares to a shares sell to a third person his third person do not make interest in the cothat person a partner ownership without the automatically unless consent of the other coagreed upon by the owners which in turn partners would make a buyer a coowner Division of Division of benefits is fixed Division of profits and profits by law losses may be subject to agreement of the parties Effect of death Death of a co-owner does Death of a partner not dissolve the codissolves the partnership ownership

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Joint tenancy and co-ownership distinguished: 1. Disability (like minority) in joint tenancy inures to the benefit of the others which is not true in co-ownership 2. In case of death of a joint tenant, the survivor is subrogated to the rights of the decedent which is not true in co-ownership where the death of a co-owner transfers his share to his heirs 3. A joint tenant may transfer or dispose of his share only with the consent of the others, but no such consent is required in co-ownership. Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void.

Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied. The law does not specify the nature of consent to alternative in a property owned in common. It may be made expressly or impliedly If a co-owner makes an unauthorized alteration, the other co-owners may demand that the alteration be removed at the expense of the guilty co-owner

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Distinguish act of administration (resolution of majority) vs. Act of alienation (consent of all)

In co-ownership, each co-owner is owner of the whole, and over the whole he exercises rights of dominion, but at the same time he is owner of a part which is truly abstract, because until division is effected such part is not physically determined Each co-owner has the right to sell, assign or dispose of hi share or part unless personal rights are involved and, therefore, he may lose said rights to others, as by prescription thereof by a co-owner A co-owner may, irrevocably, dispose of his right to the undivided share he is entitled to, subject only to the outcome of final partition, insofar as all the coowners are concerned. Each co-owner, or his successor, is entitled to his lawful share only It is elemental that until a partition is made, among the co-owners, no one of them can claim any particular portion of an undivided property as exclusively his own The remedy of a co-owner who desires that his share be adjudicated to him in severalty is by an action for partition (does not prescribe and may be passed to the heir) Benefits derived from property owned in common are divided in proportion to coowners’ interests; if it (property) suffers diminution, they shall have to share, too, the charges in accordance with their interests A co-owner cannot legally dispose of a specific portion of the property owned in common without the consent and approval of the other co-owners, his right being only to sell and convey his undivided share Shares of co-owners are equal in the absence of stipulation Generally, co-heir cannot acquire community property be prescription.

The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved.

Vena V. Verga

Art 494. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. August 2005

Property Midterms Reviewer with Senor’s Notes However, there are instances when a co-owner can acquire through prescription the share of another but the requirements are strict. There must be open and hostile repudiation of ownership.

Issue: W/N the co-owner sister A can demand rent from B and C.

Possessor held by a co-owner is generally not adverse against his co-owners

(1) No rent for the upper floor can be demanded for the C is merely exercising her right as co-owner without prejudicing A who, had she wanted, could have also lived in another room of said floor, and who therefore could not have been prejudiced.

Co-owners are not privies inter se as to property owned in common (see 14 Am Jur, p.169) Facts of the Am Jur case: There were four siblings, A, B, C and D. A filed an action against D for annulment of sale of properties. He won. B and C cannot benefit from the case for they are merely fence sitters. Since co-owners are not privies inter se, B and C must file their own cases in order to benefit from the judgment. Art. 487. Any one of the co-owners may bring an action in ejectment. • Co-owners are not privies for if there is benefit t one, it does not necessarily mean that it shall also redound to other co-owners. • Rule on privities: Under the rules on agency, when an agency does a thing, the principal will necessarily be bound. • It is clear from the judgment in the case at car that the such judgment rendered in a suit affecting the common property, brought by only one of the co-owners is not binding upon the associates nor can be invoked by the,/ Thus, where a suit set a side a decedent’s deed conveying all his property to a single son is brought only by one of the disinherited children, such judgment declaring the deed to be void cannot be availed of in a subsequent partition proceeding by any of the others. Co-owner may redeem community property sold under pacto de retro by another co-owner See Oclarit vs. Oclarit (CA - G.R. No. 16066-R, 11-17-58), where adverse possession of community property by co-owner was proven Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. One cannot be compelled to remain as co-owner Co-owner with bigger share has preferential right of pre-emption (see Robel vs. Robel, CA – G.R. No. 20934-R, Sept. 27,1958)

Decision:

(2) Half rental may be demanded for the use of the lower floor. Rent could be asked because others could have rented the same, but only half should be given since B was a co-owner. TREES Part of the real estate while growing and before they are recovered from the freehold; but as soon as they are cut down, they are personal property trees belong to the owner of the land where they grow. When the roots grow into the adjoining land, the owner of such land may lawfully claim a right to hold the tree in common with the owner of the land where it was planted; but if the branches only overshadow the adjoining land, and the roots do not enter it, the tree wholly belongs to the owner of the estate where the roots grow. When the tree grows directly on the boundary line, so that the line passes through it, it is the property of both owners, whether it be marked as a boundary or not the owner of trees in a highway is held to have the right of action for the necessary trimming of them for the installation of an electric lighting system for the municipality where the branches of a tree growing upon the land of one person overhang that of his neighbor, one may, without notice, cut off so much of a tree as overhangs his land, if he can do so without going upon the land of the owner, and such owner cannot acquire, either by prescription or the statute of limitations, the right to overhang his neighbor’s land; and where a tree stands on the dividing line between adjoining lots, either owner may cut off branches or roots extending over his own land. the owner of land on which a partially decayed tree is permitted to stand in such position that by falling it would damage the house of another, is liable for damages caused by its falling after he has been notified that it was dangerous

WATERS CASES and DOCTRINES PARDELL VS. BARTOLOME 23 Phil 450 Facts: A house was co-owned by the sister (A) and the husband (B) of the other sister (C). The upper floor was used as a dwelling and the lower was available for rent by stores. B used one of the rooms in the upper floor and another room in the lower flower as an office. Vena V. Verga

water when reduced to possession is property, and it may be bought and sold and have a market value; but it must be in actual possession, subject to control and management. When stored in an artificial appliance or water-course, it is personal property the most essential element of an appropriation of water is application to a beneficial use

August 2005

Property Midterms Reviewer with Senor’s Notes a riparian owner may construct a dam. It is not per se an improper structure as to lower owners. But a dam may not be constructed of such a height that it will back the water upon the lands of others the doctrine of the CIVIL LAW is that the owner of the upper or dominant estate has a natural easement or servitude in the lower or servient one, to discharge all waters falling or accumulating upon his land, which is higher, upon the land of the servient owner, as in a state of nature; and that such natural flow or passage of the water cannot be interrupted or prevented by the servient owner to the detriment or injury of the estate of the dominant or any proprietor the doctrine of the COMMON LAW is that there exists no such natural easement or servitude in favor of the superior or higher ground or fields as to mere surface water, or such as falls or accumulates by rain or the melting of snow, and that the proprietor of the inferior or lower tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon or over the lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion water is a movable, wandering thing, and must of necessity continue common by the law of nature no one has any property in the water itself, except in that particular portion which he might have abstracted from the stream and of which he had the possession flowing water is “publici juris”, not in the sense that it is “bonum vacans”, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. US VS. INV CO 156 Fed. 123 Doctrine: The US as the owner of the lands, though having appropriated them or reserved them already has the right to the continued flow of the waters of such stream so fast as may be necessary for the beneficial use of the government property, and the Blackfeet Indian reservation is in a sense government property. Though Conrad, the respondent, could rightfully divert water from the streams and the construction of the dam. the right of the riparian owner in the water is usufructuary, and consists not so much in the fluid itself as in its uses. The law does not recognize a riparian property right in the corpus of the water; the riparian proprietor does not own the water. He has the right only to enjoy the advantage of a responsible use of the stream as it flows through the land, subject to a like right belonging to all other riparian proprietors

SIDEWALKS that part of a public street or highway designed for the use of pedestrians Vena V. Verga

generally the sidewalk is included with the gutters and roadway in the general term street it is the duty of a municipal corporation to keep the sidewalk, as well as the roadbed of the street, in repair a municipal corporation which permits a walk to be used for public travel is liable for an injury wrongfully caused by an obstruction thereon, no matter how the walk came into existence a property owner who negligently maintains a pipe from the roof of a building so as to discharge water upon the sidewalk, will be liable for injury to pedestrians caused thereby depressions in a sidewalk, into which water flows from adjoining property, may constitute a defect, for injury by which the municipality may be liable even if the city were negligent, a person injured by a defective sidewalk cannot recover unless he show himself in the exercise of due care and if the accident occurred by reason of the plaintiff’s being intoxicated, he cannot recover where the sidewalk is manifestly dangerous, it is the duty of the pedestrian to walk on the roadway, and he cannot recover for an injury which his own observation, prudently exercised, ought to have enabled him to avoid the temporary obstruction of a street or sidewalk for the purpose of loading or unloading vehicles may be justified on the ground of necessity during building operations, materials may be placed in the street one injured by defective conditions of the street who has no knowledge of the defect, cannot be charged with contributory negligence

POSSESSION

The detention or enjoyment of a thing which a man holds by himself, or by another who keeps or exercises it in his name (Louisiana – American Jurisprudence); It expresses the closest relation that can exist between a corporeal thing and the person who possesses it, implying an actual, physical contact, as by sitting or standing upon a thing Actual possession exists where the thing is in the immediate occupancy of the party. Actual possession must be coupled with intent to possess. Constructive possession is that which exists in contemplation or eyes of law, without actual personal occupation It is the occupation of anything with the intention of exercising the rights of ownership in respect to it Natural possession implies mere physical contact with a thing, apart from all attempted exercise of rights with respect to it. The lower degree of control was known to the later civilians as “detentio” In order to complete a possession, two things are required: that there be an occupation, apprehension, or taking; that the taking be with an intent to possess (anmus possidendi): hence, persons have no legal wills, as children August 2005

Property Midterms Reviewer with Senor’s Notes and idiots, cannot possess or acquire possession; but an infant of sufficient understanding may lawfully acquire the possession of a thing Rights of ownership are substantially the same as those incident to possession; the owner is allowed to exclude all and is accountable to no one; the possessor is allowed to exclude all but one and in accountable to no one but him (owner) A very high degree of legal protection is accorded to one lawfully in possession and, whether its origin is rightful or not, a stranger cannot be heard in opposition to it. The true owner may be heard, but an intruder never The limits of the bare possessor’s right to recover damages for interference with his possession are: 1. If the defendant cannot show who the true owner is, the bare possessor may recover the same measure of damages as if he were the true owner, whether he is liable over to the owner or not; 2. Where the true owner is shown, the bare possessor cannot recover the value of the goods taken or the diminution in their value, or for injury, unless he is liable over to the owner; 3. Whether the true owner be shown or not, the possessor may recover damages for the taking or trespass, nominal or substantial, as the thing is or is not attended with aggravation Principles (possession in common law): possession in fact in such actual exclusive control as the nature of the thing will admit (double standard is allowed) possession in law, the right which is protected by possessory remedies, generally follows possession in fact, but does not necessarily cease when possession in fact ceases. The chief exception to this rule is that a servant in charge of his master’s good has not possession in law. Possession in law continues until determined in some way which the law definitely recognizes, beyond the mere absence or failure of a continuing intent to possess Possession in law is a commencement of title; in other words, the possessor can deal with the thing as an owner against all persons not having a better title and this protection extends to persons deriving title from him in good faith When possession in fact is so contested that no one can be said to have actual effective control, possession in law follows the better title (better must determine who has a better title) Failure to take possession is sometimes considered a badge of fraud (badge of fraud: questionable since you own the thing and yet you fail to take possession), in the transfer of personal property Possession of real property will be presumed to accompany ownership until the contrary is proved Constructive possession consequent upon legal ownership is sufficient as against mere trespassers Vena V. Verga

Long continued possession and use of real property creates a presumption of lawful origin When it is not based on legal right, but secured by violence and maintained with force and arms, possession cannot furnish the basis of a right Possession applies properly only to corporeal things, movables and immovables. The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a “quasi-possession”, and is exercised by a species of possession of which these rights are susceptible Possession is lost with or without the consent of the possessor. It is lost with his consent – when he transfers this possession to another with the intention to divest himself of it; when he does some act which manifests his intention of abandoning possession. A possessor of an estate loses the possession against his consent – when another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering; when the possessor of an estate allows it to be usurped and held for a year, without during that time having done any act of possession or interfered with the usurper’s possession In general, the possessor of personal chattels is presumed to be the owner; and in case of real estate, he has a right to receive the profits until a title adverse to his possession has been established CIVIL possession exists when a person ceases to reside in a house or on the land, which he occupied, or to detain the movable, which he possessed, but without intending to abandon the possession. It is the detention of a thing by virtue of a just title and under the conviction of possessing as owner. NATURAL possession is that by which a man detains a thing corporeal. It is also defined to be the corporeal detention of a thing, which we possess as belonging to us; without any title to that possession, or with a title, which is void. Possession applies only to corporeal things, movable and immovable. The possession rights, such as servitude and other rights of that nature, is only quasi-possession, and is exercised by a species of possession of which these rights are susceptible. HOW IS POSSESSION LOST: Possession is lost with or without the consent of the possessor. (a) It is lost with his consent when he transfers this possession to another with the intention to divest himself of it. (b) When he does some act which manifests his intention of abandoning possession. A possessor of an estate loses the possession against his consent When another expels him from it whether by force in driving him away, or by usurping possession during his absence and preventing him from re-entering When the possessor of an estate allows it to be usurped and held for a year without during that time having done any act of possession or interfered with the usurper’s possession. August 2005

Property Midterms Reviewer with Senor’s Notes

Bad faith is not transmissible from one possessor to another Possession in good faith is not a good defense in accion reivindicatoria Person who acquires possession of land through fraud cannot acquire title over improvements thereon Possessor in bad faith loses improvements and is liable for fruits gathered Possessor in bad faith is not entitled to reimbursement for useful expenses Abandonment of property arises only when hope of recovery and intent to return are given up Possession of co-owner is generally not adverse against his co-owners Possession not in the concept of the owner is not adverse possession if occupant possessed land under some color of title derived from registered owner, his possession may ripen into ownership Possession should not be disturbed unless by judicial order The ordinary course of affairs is that the actual possessor is either the owner or the holder of possession de jure (73 Phil. 649; Lizo vs. Carandang) A possessor cannot be ousted except through judicial action Actual possession though not founded upon claim of ownership is entitled to protection of the law Only one in actual possession may institute an action of forcible entry Symbolic tradition is equivalent to physical possession Possession of a part is constructive possession of the whole Possessor in good faith is entitled to reimbursement of his necessary and useful expenses; and to the fruits Possessor of stolen goods must explain such possession In ejectment cases, only physical possession is the issue prior physical possession of real property is necessary to make forcible entry and detainer action prosper US VS. TAN TYCO 13 Phil. 939 Facts: Defendants claimed that the utensils used for smoking opium found at their possession were the property of one of the co-proprietors of the store, which they were occupying. The co-proprietor admitted that he was the real owner of the utensils but alleged that he had a license to smoke opium. Trial court convicted the defendants notwithstanding this explanation. Decision: Possession has been defined to be the detention or enjoyment of a thing which a man holds or exercises by himself or by another. In order to complete possession two things are required, that there be an occupancy, apprehension or taking (corpus) and that the taking be with intent to posses (animus possidendi). In this case, the absence of animus possidendi has been satisfactorily shown. The defendants were acquitted. Forms Of Possession possession based on absolute ownership or valid title possession based on just title (like one who possesses in good faith) possession not in the concept of owner but based on a juridical title as possession of a lessee Vena V. Verga

possession without any right (like possession of a property stolen by a thief) How possession acquired: 1. by the material occupation of a thing (tradicion brevi manu; tradicion constitutum possessorium) 2. by the exercise of a right 3. subject to the action of our will (tradicion simbolica; tradicion longa mau; tradicion frigida) 4. proper acts and legal formalities established for acquiring property (delivery by sheriff) Art. 538. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings. Rules:

1. 2. 3.

present possessor is preferred longer in possession (in case of 2) he who presents a title (in case dates of possession are the same)

CAGAOAN VS. CAGAOAN 43 Phil 554) Doctrine: Since the title has a defect because it was registered in bad faith. Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

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The possessor – movant (one who asks for preliminary mandatory injunction) should have been in prior, peaceful possession of the property MASALLO VS. CESAR 39 Phil 134

Facts: defendant had been in possession of a piece of land for an indefinite period of time. Plaintiffs acquired a deed to the land from a third person. Plaintiffs seek to recover possession by action of forcible entry or detainer. August 2005

Property Midterms Reviewer with Senor’s Notes Decision: plaintiff’s actions cannot be sustained. It was he who was guilty of wrongful seizure of the property for the defendants was in prior peaceful possession thereof. The person entitled to the action of forcible entry and detainer is the first having actual possession.

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a lessee, or employee, a pledgee, an antichretic creditor, a trustee and a coowner cannot claim title by acquisitive prescription because they possess the property not in the concept of owner. for the purpose of prescription, just title must be proved; it is never presumed. The general rule is that the possession and cultivation of a portion of land under claim of ownership is a constructive possession of all if the remained is not in the adverse possession of another. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. Good faith of the possessor consists in his belief that the person from whom he received the thing was the owner of the same and could convey his title. In Article 539, the claimant is not in possession and for this reason, he should resort to judicial remedies. In self held (Article 429), the owner or lawful possessor is in possession so he had to defend his right with the use of reasonable force.

Art. 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it.

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In Article 541, the possessors stance is passive, he is asserting nothing except the fact of possession. Not so with article 1131, the possessors stance is active, he is asserting not mere possession but ownership through prescription.

Art. 542. The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded.

Art. 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

Vena V. Verga

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

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All possessors entitled to be refunded necessary expenses (if in good faith, with right of retention) Useful expenses (those which increase the rental value of the property) 1. Only possessor in good faith entitled to reimbursement (also with right if retention) 2. May be moved (as damage to principal heirs); unless succeeding possessor reimburses the prior possessor

Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended. • Expenses for pure luxury (good faith): no refund; may be removed (no injury); and if successor does not refund Art. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of Article 546 and in Article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. • Possessor in bad faith 1. Entitled to necessary expenses and expenses for production, gathering and preservation of fruits 2. Expenses for pure luxury – no refund 3. But may remove (no injury; and lawful possessor does not pay him)

Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event. • good faith – entitled to the expense incurred for the improvement for luxury or pleasure • bad faith – entitled to the value at the time the lawful possessor enters into possession

August 2005

Property Midterms Reviewer with Senor’s Notes Art. 554. A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary.

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(2) By an assignment made to another either by onerous or gratuitous title; (3) By the destruction or total loss of the thing, or because it goes out of commerce;

acquisition in good faith refers to the possession in the concept of owner and not that of a lessee.

(4) By the possession of another, subject to the provisions of Article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years.

OUTLINE OF EFFECTS OF POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH FRUITS RECEIVED possessor in goof faith is entitled to fruits received while his possession is still in good faith (Article 544). • Possessor in bad faith shall reimburse fruits received, or which legitimate possessor could have received, subjected to Article 433 (Article 549) PENDING FRUITS • PGF shall be liable for expenses of cultivation and shall share in net harvest in proportion to the time of their possession (Art. 545) • PBF shall not have any right CHARGES • PGF/PBF shall share in proportion to the time of their possession (Art. 545) EXPENSES • Necessary expenses PGF has: 1. right of reimbursement (Art. 546) 2. right of retention (Article 546) PBF has: right of reimbursement only • Useful expenses PGF has: 1. Right of reimbursement 2. Right of retention (Art. 546) 3. limited right of removal (Art. 547) PBF: none • Ornamental expenses PGF: limited right of removal (Art. 548) PBF: limited right of removal (Art. 549) DETERIORATION OR LOSS PGF: No liability, unless due to his fault or negligence after he had become possessor in bad faith PBF: Always liable, whether due to his fault or negligence or due to a fortuitous event.

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Note: Taxes, by virtue of Article 455 shall be divided between the possessor and the owner in proportion to the time of their respective possession, irrespective of good faith or bad faith of the former.

Art. 555. A possessor may lose his possession:

ADVERSE POSSESSION

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the enjoyment of land under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor a prescriptive title rests upon a different principle from that of a title arising under the statute of limitations. Prescription operates as evidence of a grant and confers a positive title. The statute of limitations operates not so much to confer positive title on the occupant, as to bar the remedy. Hence it is said to be properly called a negative prescription. It applies only when there has been a dissent or some actionable invasion of the real owner’s possession The statute of limitations is the source of title by adverse possession. It is held to be not grounded upon the presumption of a grant, but is the fiat of the legislature cutting off the right to maintain suit; and is for the interest of the stability of titles. It protects the disseisor in his possession not out of regard to the merits of his title, but because the real owner has acquiesced in his possession. It must be complied with in every substantial particular. A mere possession, without color or claim of an adverse title, will not enable one in an action of right to avail himself of the statute of limitations The terms “color of title” and “claim of title” are not synonymous. To constitute the former, there must be a paper title, but the latter may rest wholly in parole. The claim of right may be made inferentially by unequivocal acts of ownership, as by the occupation and use of land, or by visible, hostile, exclusive, and continuous appropriation of the land. It need not be a valid claim, so long as it is made and relied on by the person in possession. And where all other elements of an adverse possession have concurrently and persistently existed for the statutory time, “color of title” has been usually held not essential. The intention must be manifest. It guides the entry and fixes its character. Possession taken under claim of title shows such intention. But if by mistake one oversteps his bounds and encroaches upon his neighbor’s lands, not knowing the location of the true line and intending to claim no more than he really is entitled to possess, his possession is not adverse, and will not give him title no matter how long he actually holds it. In such a case the intent to claim title exists only upon the condition that his belief as to his boundary is true. The intention is not absolute but provisional.

(1) By the abandonment of the thing; Vena V. Verga

August 2005

Property Midterms Reviewer with Senor’s Notes

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When a boundary line between adjoining landowners is perpetually in dispute, and neither has actual occupation to any definite line, there is no adverse possession beyond the true line Where one enters into possession of real property by permission of the owner, without any tenancy whatever being created, except at sufferance, possession being given as a mere matter of favor, he can never acquire title by adverse possession, no matter how long continued against the true owner thereof, unless there is a clear, positive, unequivocal disclaimer and disavowal of the owner’s title and an assertion by the occupant of a title in hostility thereto, notice thereof being brought home to the landowner The adverse possession must be actual, continued, visible, notorious, distinct and hostile. It is founded in trespass and disseisin, an ouster and continued exclusion of the true owner for the period prescribed by the statute One claiming by adverse possession cannot avail himself of the precious possession of another person with whose title he is in no way connected There can be no adverse possession against a state, but a state may acquire a title by adverse possession When trust property is taken possession of by a trustee, it is the possession of the cestui que trust and cannot be adverse until the trust is disavowed, to the knowledge of the cestui que trust The title by adverse possession for such a period as is required by statute to bar an action, is a fee simple title, and is as effective as any otherwise required Void deed of sale can be basis for title by adverse possession Invalid donation can be basis for title by adverse possession

Art. 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. VARELA VS. FINNICK 9 Phil. 482 Facts: Nicolasa, instead of selling jewels that were given to her by the plaintiff to be sold on commission, pawned said jewelries to different shops. Defendant sought to defeat the action of the plaintiff saying that she accepted the jewelries in good faith. Court ordered restitution. Issue: W/N restitution was valid. Decision: The restitution of the misappropriated jewels must be made even if they are found in the possession of a third party, such as pawnshops, and notwithstanding the fact that they were lawfully acquired by it, its right to institute Vena V. Verga

proceeding against whoever may be liable therefore being reserved by law. While actual possession of personal property is equivalent to a title thereto so long as no proof is offered that the same was acquired in bad faith, yet from the time that the latter condition is proven, as well as the loss of the thing, or that the owner was unlawfully deprived of it, the latter is entitled to the recovery thereof within the limits fixed by law, because the holder lacks the good faith indispensable to the protection of his possession. CRUZ VS. PAHATI 52 OG 3253 Facts: A, owner of a Buick car delivered his car to B to be shown to prospective buyers. A lost his certificate of registration thus he gave a letter addressed to the LTO asking for issuance of a new certificate of registration. B however falsified the letter by converting it into a deed of sale. Subsequently, he sold the car to C and C sold it to D. Issue: W/N A can recover the car.

Decision: Yes. By virtue of Article 559, the possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefore. The maxim that “no man can transfer to another a better title than he has himself” obtains in the civil as well as the common law. ARENAS VS. RAYMUNDO 19 Phil 47 Facts: Plaintiffs delivered to one Conception several pieces of jewelry to be sold on commission. But instead of selling them, the agent pledged the jewelries and used the money thereby obtained. The defendant refused to deliver the possession of jewelries saying that they were validly pledged to her. Court ordered the defendants to restore the jewelries. Issue: W/N the jewelries should be restored. Decision: Even supposing that the defendant accepted the pledge of the jewels in good faith, he would not be entitled to retain it, since the owner of the jewels did not make any contract with the pledgee that would obligate him to pay the amount loaned to the agent. Between the supposed good faith of the defendant and the undisputed good faith of the plaintiff, the owner of the jewels, neither law nor justice permit the latter, after being the victim of embezzlement, should have to choose one of the two extreme of a dilemma, both of which are injurious and prejudicial to her interest and rights; that is, she must either lose he jewels or pay a large sum. As the owner of the pawnshop accepts the pledging of jewelry from August 2005

Property Midterms Reviewer with Senor’s Notes the bearer without assuring himself whether such bearer is or is not the owner thereof, he cannot by such procedure expect the law better preferential protection than the owner of the jewels or other articles, who was deprived therof by means of a crime.

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Except in cases provided by law, a buyer who buys a thing must bear the risk of defect of the goods or the title thereof Requisites to make possession of movable property equivalent to title: 1. the possession is in good faith 2. The owner has voluntarily parted with the possession of the thing 3. The possessor is in concept of owner

Full credit must be given to one’s possession.. the rule of revindicability provides that one ordinarily lose his possession only if possession is weak. • The general rule of Revindicability has two exceptions: 1. when the owner has lost the thing (a immovable) 2. when the owner has been unlawfully deprived thereof Article 559 is the answer to the exceptions on the rule of revindicability. Under such provision, one ought to recover if one has lost a possession.

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Modes of recovery: 1. immovables: revindicatoria 2. movable: replevin Public sale – there is a public notice of the sale, anybody can bid and offer to buy REBULLIDA VS. BUSTAMANTE 45 OG 17, Supp No. 5, May, 1949 Facts: The present case is an action for Replevin of a lady’s platinum ring owned by one Mrtha Theresa Dysaty which she deposited in the vault of “estrella del Norte” after liberation, the said vaults were found open and the ring gone. Later, plaintiff saw the ring being peddled by one Caridad Valle. Valle alleged that the ring was owned by his brother Ariston Bustamante. Defendant now contends that she got the ring in good faith, thus, she should not be ordered to return it without being reimbursed. Decision: The mere fact that the defendant, even in good faith, had purchased the ring from another person would not bar the right of the owner to recover it once the identity and the illegal deprivation has been established. Article 559 provides that reimbursement applied only in public sale. The ring being acquired in a private sale should be returned without the plaintiff having to reimburse the defendant. Except in cases provided by law, a buyer who buys a thing must bear the defects.

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it is a general principle that no man can be divested of his property without the consent or voluntary act. Two exceptions 1. where the owner has entrusted or delivered to an agent money or negotiable promissory notes, and where the money or negotiable

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2.

promissory notes have been delivered or transferred to some innocent third party. This exception is based on the exigencies of commerce. another exception is based upon the doctrine of estoppel.

Art. 560. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. Art. 561. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes, which may redound to his benefit, to have enjoyed it without interruption.

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a possessor in good faith will be deemed to be in continuous possession for the purpose of prescription. the recovery of possession must be according to law, through the use of proper actions or with the aid of competent authority.

Instance when the owner of a movable who has lost it or unduly deprived thereof can no longer recover: 1. If recovery is no longer possible because of prescription (Article 1132 provides that ownership of things prescribe in four years) 2. If the possession had acquired the thing from a person whose authority to sell the owner is by his conduct precluded from denying (Art. 1505). 3. if the possessor has acquire the thing from a merchant store, or in fairs, or markets in accordance with the Code of Commerce and special law. 4. If the thing is a negotiable instrument or a negotiable document and the possessor is a purchaser in good faith or for value (Section 57 of NIL). 5. If the possessor is now the owner of the thing in accordance with the principle of finders keepers recognized in Art. 719 of the Civil Code.

USUFRUCT Art. 562. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. USUFRUCT LEASE REAL RIGHT Always a real right May or may not be SOURCE Law, will of the parties or Generally created by contract prescription give rise to (see Art. 448) SCOPE Has a wider extent of Limited scope enjoyment GRANTOR Person giving the Lessor need not be the owner Usufructuary must be the of the property owner of the property TAXES and Usufructuary pays the Lessee does not generally pay REPAIRS ordinary repairs and taxes or for repairs and taxes August 2005

Property Midterms Reviewer with Senor’s Notes fruits VDA DE BOGACKI VS. INSERTO 111 SCRA 356 Doctrine: The usufruct of a widow may be transferred, assigned or otherwise disposed of by her as she may please. HEITZEN vs. BENNIGER 2 Pac 377 Doctrine: Possession of Usufructuary is not adverse possession required for prescription since it is not possession in the concept of an owner. Therefore, such possession may never ripen into ownership of the thing held in the usufruct. Usufruct is the right of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing stock dividend belongs to usufructuary of shares of stock; it is an income or fruit of the capital which should be given and enjoyed by the life usufructuary as his own exclusive property and not part of the capital which should be preserved in favor of the owners (Orozco vs. Araneta, 90 Phil. 399, Bachrach vs. Seifert, 87 Phil. 483) Sale of land not affected by usufructuary rights (Garcia vs. Rivera, 95 Phil. 831) Death of usufructuary terminates usufruct (see: Herrera vs. Ceniza, 89 Phil. 398) Widow has right to sell her usufructuary right (Guantia vs. Tatay, 88 Phil. 329) The right of usufruct of a town over its municipal waters is not subject to execution (Paoay vs. Manaois, 86 Phil. 629) Art. 566. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. a Usufructuary is entitled to all the fruits of the property in usufruct (see: Lopez vs. Constantino, 74 Phil 160) a life usufruct, being a real right, cannot be deemed extinguished as long as the usufructuary lives and so long as the property in usufruct exists (Albar vs. Carandung, CA-GR No. 11917-R, October 11, 1957) usufruct cannot be proven by parole evidence because this is a real right against a movable. (Byres vs. Locke, 29 Pac. Reporter 119, Goce vs. Rosales, CA-GR No. 23581-R, 5/11/60) perfect usufruct – is of things which the usufructuary can enjoy without altering their substance, through their substance may be diminished or deteriorated naturally by time or by the use to which they are applied Vena V. Verga

imperfect or quasi-usufruct – is of things which would be useless to the usufructuary if he did not consume and expend them or change the substance of them: as money, grain, liquors. In this case, alteration may take place. Art. 583. The usufructuary, before entering upon the enjoyment of the property, is obliged: (1) To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables; (2) To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. Duties of the usufructuary: At the commencement of the usufruct: 1. to make an inventory of the things subject to the usufruct, in the presence of those having an interest in them 2. to give security for their restitution when the usufruct shall be at an end (Art.. 583) During the pendency of the usufruct: 1. to take good care of the things subject to the usufruct (Art. 589. The usufructuary shall take care of the things given in usufruct as a good father of a family) 2. to pay all taxes and claims which arise while the thing is in his possession as a ground rent (Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts) 3. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary. 4. Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent. 5. Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault. 6. Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary. Art. 589. The usufructuary shall take care of the things given in usufruct as a good father of a family.

August 2005

Property Midterms Reviewer with Senor’s Notes Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct.

EASEMENT

By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary. (500)

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.

Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent.

Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. (504) Art. 597. The taxes which, during the usufruct, may be imposed directly on the capital, shall be at the expense of the owner. when real estate tax is chargeable to the owner, and not to the usufructuary since the general rule is: the usufructuary shall pay for the taxes (Bislig Bay Lumber vs. Provincial Government of Surigao, 52 O.G. 7242)

CLARK VS. GIDDEN 15 Alt 358 Doctrine: License is different from easement: licenses if an authority to do some act, while easement is the right in the owner of one parcel of land by reason of such ownership to use the land of another for a specific purpose, not inconsistent with a general property in the owner --- a right which one proprietor has to some profit, benefit, or beneficial use. Easement must pass by deed or prescription, whaler mere license to do a particular act may be parol.

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A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner

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A privilege which the owner of one adjacent tenement has of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists

Art. 603. Usufruct is extinguished: (1) By the death of the usufructuary, unless a contrary intention clearly appears;

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an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another

(2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct;

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Although the terms are sometimes used as if convertible, properly speaking EASEMENT refers to the right enjoyed by one and SERVITUDE the burden imposed upon the other

(3) By merger of the usufruct and ownership in the same person;

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the land against which the privilege exists is called the SERVIENT tenement; its proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the DOMINANT tenement. And as these rights are not personal and do not change with the persons who may own the respective estates, it s very common to personify the estates as themselves owning or enjoying the easements.

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Essential qualities of easements: Easements are incorporeal they are imposed upon corporeal property they confer no right to a participation in the profits arising from it

when usufructuary pays real estate taxes (Albar vs. Carandang, 57 O.G. 6418) Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary.

(4) By renunciation of the usufructuary; (5) By the total loss of the thing in usufruct; (6) By the termination of the right of the person constituting the usufruct; (7) By prescription. Vena V. Verga

August 2005

Property Midterms Reviewer with Senor’s Notes they must be imposed for the benefit of corporeal or incorporeal hereditaments, and are usually imposed for the benefit of corporeal there must be two distinct tenements, the dominant, to which the right belongs; and the servient, upon which the obligation is imposed the cause must be perpetual

Discontinuous are those, the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water. easements impose no duty on the servient owner, except not to change his tenement to the prejudice or destruction of the privilege easements are as various as the exigencies of domestic convenience or the purposes to which buildings and lands may be applied

Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man.

an easement of private way over land must have a particular, definite line. To establish an easement of a private way b prescription, the use must be continuous and uninterrupted under a bona fide claim of right adverse to the owner of the land and with his knowledge and silence. If the use is by his permission or if he devies(?) the right, the title does not accrue; verbal protests against the use prevent its accruing.

Discontinuous easements are those which are used at intervals and depend upon the acts of man.

all easements must originate in a grant or agreement, express or implied, of the owner of the servient estate

Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent.

Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Nonapparent easements are those which show no external indication of their existence. (532) Art. 616. Easements are also positive or negative. A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (533) Art. 617. Easements are inseparable from the estate to which they actively or passively belong. (534) Art. 618. Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him. If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way

continuous easements are those of which the enjoyment is, or may be, continual, without the necessity of any actual interference by man. Vena V. Verga

a negative easement does not admit of possession; it cannot be acquired by prescription, and can only be proved by grant. Use, therefore, is not essential to its existence. Art. 631. Easements are extinguished: (1) By merger in the same person of the ownership of the dominant and servient estates; (2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; (5) By the renunciation of the owner of the dominant estate; (6) By the redemption agreed upon between the owners of the dominant and servient estates. August 2005

Property Midterms Reviewer with Senor’s Notes

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easements are extinguished: 1. by release 2. by merger, when the two tenements in respect of which they exist are united under the same title and to the same person 3. by necessity, or abandonment, as by a license to the servient owner to do some act inconsistent with its existence; 4. by cessation of enjoyment, when acquired by prescription; the non-user being evidence of a release where the abandonment has continued at lease as long as the user from which the right arose 5. an easement acquired by grant cannot be lost by mere non-user; though it may be by non-user coupled with an intention of abandonment 6. the destruction of an easement of a private right of way for public purpose is a taking of the property of the dominant owner for which he must be compensated (US vs. Welch, 217 US 333, 54 L. Ed. 787)

prescription does not run against the exercise of a servitude in favor of one who resisted and prevented its exercise (Sarpy vs. Hymel, 4 South 439)

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a personal servitude is the subjection of one person to another: if it consists in the right of property which a person exercises over another, it is slavery. When the subjection of one person to another is not slavery, it consists simply in the right of requiring of another what he is bound to do or not to do: this right arises from all kinds of contracts or quasi-contracts

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in common law, the use of the word servitude is as a correlative of easement; where one person has an easement which creates a burden upon the property of another, the latter is said to be burdened with a servitude

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Cabucangan vs. Corrales, 95 Phil 919 – an easement is not extinguished by the acquisition of a share in property held in common

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easement of drainage is not dependent upon acts of man; the descent of rain water from the higher to the lower estates is due to the force of gravity; this easement should be classed among the continuous ones, and it is subject to extinction by non-user to the period required by law (Ongsiaco vs. Ongsiaco, L-17510, March 30, 1957)

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read: Gonzales vs. Banzon, 51 Phil. 15

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a fishpond owner may build a canal through another fishpond in order to draw water from the river adjoining the latter’s fishpond, provided that the construction thereof is the most convenient and the least onerous (see 88 Phil 770)

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the only manner in which a barrio road or easement can be recognized over property of private ownership, in the absence of a notation in the title thereof or a written document accrediting such recognition, is by prescription. Therefore, to justify an oppositor’s claim of title to the road or to the easement by prescription it is necessary that the fact that there was merely tolerance or permission on the part of the owner, which is presumed, be overcome by positive acts on the part of the municipality enjoying it or asserting its existence (Archbishop of Manila vs. Roxas, 22 Phil 450; Vda. de Reyes vs. Municipality of Calumpit, CA-GR Nos. 3161-3163-R, November 26, 1949)

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creation of servitude does not involve transfer of ownership of servient estates

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actual notice of existence of right of way is as binding as registration (Mendoza vs. Rosel, 74 Phil 84)

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owner of dominant estate has obligation to make necessary works to conserve his easement (Adorable vs. Villaroman, 51 OG 3152)

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easement of waters does not require that higher and lower estates be contiguous (Pennela vs. Hornada, CA-GR No. 15871-R, December 20, 1957)

mere non-user must be accompanied by adverse use of the servient estate (Welsh vs. Taylor, 31 N.E. 896) an easement in favor of land held in common will be extinguished by a partition, if nothing is said about it the remedy at common law for interference with a right of easement is an action of trespass, or for consequential damages, or for the infringement of an easement and an injunction will be granted to prevent the same (Vossen vs. Dautel, 22 S.W. 734, Brenton vs. Davis, 44 Am. Dec. 769)

SERVITUDE Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong

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the subjection of one person to another person, or of a person to a thing, or of a thing to a person, or of a thing to a thing

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a right which subjects a land or tenement to some service for the use of another land or tenement which belongs to another master

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all servitudes are stereotyped and cannot be varied at the pleasure of parties (Mersleon vs. Safe Deposit Co., 57 Atl. 569)

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a real or praedial servitude is a charge laid on an estate for the use and utility of another estate belonging to another proprietor; when used without any adjunct, the word servitude means a real or praedial servitude

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a natural servitude is one which arises in consequence of the natural condition or situation of the soil

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easement of waters, being a legal easement, does not need to be annotated on the title covering the servient estate

(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or

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see Gargantos vs. Tan Yanon, L-14652, January 30, 1960 (light and view, etc.)

(5) Hinders or impairs the use of property.

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easement should be exercised with least prejudice to servient estate

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right of way is not voluntary but compulsory

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damages are recoverable for breach of easement

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dam impeding flow of water from higher and lower estates may be demolished

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read: Cortes vs. Yu Tibo, 2 Phil 24, Fabie vs. Lichauco, 11 Phil 14, Cid vs. Javier, L-14116, June 30, 1960

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public use may not be imposed on private property without proper expropriation and just compensation

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easements are in the nature of an encumbrance on the servient estate. They constitute a limitation of the dominical right of the owner of the subjected property. Hence, they can be acquired only by title and by prescription, in the case of positive easement, only as a result of some sort of invasion, apparent and continuous of the servient estate. By the same token, negative easements cannot be acquired by less formal means. Acquisition of negative easements requires execution of notarial instrument.

Art. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition. Art. 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it. Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Art. 698. Lapse of time cannot legalize any nuisance, whether public or private.

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abatement of nuisance is an exercise of police power

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essential requisites for abatement of nuisance: the nuisance complained of is private in nature, because it does not affect a community or neighborhood, or any considerable number of persons, and in order that a civil action for its abatement may lie, there must be clear and convincing showing: (1) that this particular nuisance be injurious or dangerous to the health or safety of the plaintiff or his family; or (2) annoying or offensive to their sense; or (3) shocking, defying or disregarding decency or morality; or (4) obstructing or interfering with the free passage of any public highway or street, or any body of water; or (5) hindering or impairing the use of property.

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houses constructed in public places constitute pubic nuisance

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only nuisance per se may be abated summarily

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right to maintain private nuisance may be acquired by prescription (see 152 ALR pp. 344-345)

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procedure for demolition of a public nuisance without judicial proceedings (Art 702, NCC)

(2) Annoys or offends the senses; or

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occupation of an estero is nuisance

(3) Shocks, defies or disregards decency or morality; or

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abatement of public nuisance (66 C JS 733, Quinto vs. Lacson, 58 OG 5095)

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apparent sign of easement (under Art. 624) is equivalent to title when estate is alienated; the visible and permanent sign of an easement is the title that characterizes its existence (Amor vs. Florentino, 74 Phil 403)

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easement is extinguished upon registration of servient estate if it is not annotated on the title

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overhanging eaves may be removed (Lavada vs. Perello, CA GR No. 17720-R, May 24, 1960)

NUISANCE Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or

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Property Midterms Reviewer with Senor’s Notes

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a thing may be a nuisance in one place which is not so in another; therefore for situation or locality of the nuisance must be considered

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to constitute a public nuisance, there must be such a number of persons annoyed that the offense can no longer be considered a private nuisance

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individuals are not entitled to redress against a public nuisance (see McCloseky vs. Coast Co., 160 Fed. 794)

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it is anything that injures, annoys, obstructs or hinders to the prejudice of an individual or the public

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DOCTRINE OF ATTRACTIVE NUISANCE one whom maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises.

Art. 699. The remedies against a public nuisance are: HIDALGO ENTERPRISES VS. BALANDAN 91 Phil 488

(1) A prosecution under the Penal Code or any local ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings. • remedies: action for the damage done, by the owner, in the case of a private nuisance; or by any party suffering special damage, in the case of a public nuisance by abatement by the owner, when the nuisance is private by injunction by indictment for a public nuisance

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a private individual cannot abate a nuisance in a public highway, unless it does him special injury, and then only so far as is necessary to the exercise of his right of passing along the highway

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he may abate a public nuisance only when it is also a private nuisance to him, or incommodes him more than the general public

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equity will consider the comparative injury which will result from the granting or refusing of an injunction, and it will not be granted where it will be inequitable and oppressive, as where it would cause a large loss to defendant and others, while the injury if it is refused, would be comparatively slight and can be compensated by damages (read 142 Fed. 625)

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Doctrine: Any body of water, artificial as well as natural cannot as a rule be considered an attractive nuisance, in the absence of any unusual condition or artificial feature thereof other than mere water. This is because nature has created streams, lakes and pools. Danger always lurks in such bodies of water. Children of tender years are aware of that. Consequently, when the swimming pool is merely a duplication of nature, it cannot be considered as an attractive nuisance. However, if an unusual or artificial condition or feature will be added, then the doctrine of attractive nuisance will be applicable.

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nuisance consists of a use of one’s own property in such a manner as to cause injury to the property or right or interest of another, and severally results from the commission of an act beyond the limits of the property affected

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in nuisance, the question generally is whether the defendant’s use of his property was unreasonable as to plaintiff, without regard to forseeability of injury

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liability for negligence is based on a want of proper care, while, ordinarily, a person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury

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the principles of negligence ordinarily apply where the cause of action is for harm resulting from one act which created an unreasonable risk of injury; whereas the principles of nuisance ordinarily apply where the cause of action is for continuing harm caused by continuing or recurrent acts which cause discomfort or annoyance to plaintiff in the use of his property

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in respect to those things which are a nuisance because of the annoyance and discomfort they produce, they are to be judged by the effect they are calculated to produce upon ordinary people under normal circumstances, not by their effect upon the oversensitive, the fastidious or the sick, nor, on the other hand, by their effect upon those who are abnormally indifferent to such things, or who by long experience have learned to endure them without inconvenience. The inconvenience must be something more than mere fancy, mere delicacy or fastidiousness; it must be an inconvenience materially interfering with the ordinary comfort, physically, of human experience; not

easement against nuisance – 682/683

Art. 682. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes. Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood.

Vena V. Verga

August 2005

Property Midterms Reviewer with Senor’s Notes merely according to elegant and dainty modes and habits of living, but according to plain, sober, simple notions among the people. The standard as to the effect of an alleged nuisance must be the man of normal nervous sensibility and ordinary mode of living.

Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos. Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings. Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance.

Vena V. Verga

August 2005