May I share my discussions in one case involving easement of lateral and subjacent support in the appellate court, infra:
First of all, it must noted that the easement of lateral and subjacent support under Articles 684 to 687 of the Civil Code, is a legal easement, i.e., one that is constituted by law, either for public use or private interest (Edgardo L. Paras, Civil Code of the Philippines Annotated, Vol. II, 15th Edition, Pages 616 – 617).
The other kinds of legal easements are waters (Articles 637 to 648 of the Civil Code), right of way (Articles 649 to 657), party wall (Articles 658 to 666), light and view (Articles 667 to 673), drainage of buildings (Articles 674 to 676), intermediate distances (Articles 677 to 682), and against nuisances (Articles 682 to 683) [Paras, supra, Page 647 to 648].
The humble submission of the appellant is that the easement of lateral and subjacent support is a “continuous” and “apparent” easement, which may be acquired “either by virtue of a title or by prescription of ten years”, pursuant to Article 620 of the Civil Code.
A “continuous” easement is one “the use of which is or may be incessant, without the intervention of any act of man” (Article 615, Civil Code). “It is enough that the use MAY BE incessant” (Paras, supra, Page 645) In 4 Manresa 597, cited in Paras, supra, Page 645, “the right to support a beam on another’s wall is a continuous easement”. By analogy, the same principle applies with respect to the appellants right to easement of lateral and subjacent support because in both cases the underlying spirit is the “support” of a standing structure to prevent collapse.
An “apparent” easement is one which is “made known and continually kept in view by external signs that reveal the use and enjoyment of the same” (Paras, supra, Page 644). In 4 Manresa 600, cited in Paras, supra, Page 646, to be an apparent easement, “the mark or sign need not be seen, but should be susceptible of being seen”. By analogy, the appellant’s claim of right of legal easement of lateral and subjacent support is an apparent easement, because the same was not only susceptible of being seen but was physically and actually visible to both owners, in that the embankment (which constituted as the lateral and subjacent support for the appellant’s family dwelling) was clearly visible to the appellant, the appellee, and the appellee’s predecessor-in-interest. In fact the embankment was intentionally maintained in its place by the developer of Manuela Subdivision, precisely to serve as the lateral and subjacent support of the adjacent family dwelling of the appellant. In this scenario, the dominant estate is the appellant’s property (which has an elevation of 15 feet above the level of the property of the appellee), while the appellee’s property is the servient estate.
In fine, the trial court erred in holding that the legal easement of lateral and subjacent support is a non-apparent easement, which could only be acquired by title and not by prescription, pursuant to Article 622 of the Civil Code.
In Tideman, Real Property, Sec. 618 and in the Memorandum of the Code Commission, February 17, 1951, pp. 26 – 28, as cited Paras, supra, Page 728, “even without a prohibition by the dominant estate, the elimination of the easement of lateral or subjacent support WOULD BE UNLAWFUL”. The aggrieved dominant estate is entitled to injunction and damages in such a case (Paras, supra, Page 729, citing Prete vs. Gray, April 25, 1918, 141 Atl. 609).
In Block vs. Hasseltine, 29 N. E. 937, cited in Paras, supra, Page 729, it was held that “while a person may excavate on his own land, he cannot do so if by such action adjacent buildings would collapse or adjacent lands crumble”, except when he “offers sufficient artificial support to said buildings or lands”.
Article 687 of the Civil Code imposes on the owner of the servient property the duty to notify the adjacent owners of his intention to excavate. In Fooley vs. Wyeth, Supreme Court of Massachusetts, 79 Am. Dec. 771, cited in Paras, supra, Page 730, it was held that “even if there be notice, the excavation should not deprive the owners of lateral or subjacent support”.
In the case at bar, as shown by the results of the two (2) ocular inspections conducted by the trial court, the appellee had intentionally removed the embankment, which served as the lateral and subjacent support of the property of the appellant (TSN, March 6, 2003, Pages 26 to 28). There was no evidence that the appellee had notified the appellant prior to excavation and removal of the embankment. In fact, the appellee had intentionally hid the matter from the appellant, which the former could easily do because the roof of her dwelling totally covered the embankment that served as the lateral and subjacent support of the family dwelling of the appellant.
The main issue in the instant case is whether or not the annotation of the appellant’s Affidavit of Adverse Claim was a proper interim or provisional remedy or action under existing laws and jurisprudence to assert, protect, and record his right to legal or compulsory easement of lateral and subjacent support under Articles 684 to 687 in relation to Articles 620, et. seq., of the Civil Code, in order to protect the foundation of his family dwelling from the great peril of massive collapse.
The Affidavit of Adverse Claim of the appellant, which was annotated as Entry No. 8076-17 on February 29, 2000 on the appellee’s TCT No. T-36071 by the Register of Deeds of Las Pinas City, had properly complied with the requirements of Section 70 of P. D. 1529. The main basis of the Affidavit of Adverse Claim of the appellant was his right of legal easement of lateral and subjacent support, as described in the preceding paragraphs hereof, which the appellee had violated and ignored, notwithstanding the summons and invitations issued by the Chairman of Barangay Talon 5. The Affidavit of Adverse Claim of the appellant was duly examined, recognized and accepted by the Register of Deeds pursuant to P. D. 1529 and the internal rules and regulations of the Land Registration Authority (LRA), a performance of a public duty that was entitled to the presumption of regularity pursuant to the Rules of Evidence.
An Affidavit of Adverse Claim is a “notice to whole world that the claimant has a SPECIFIED INTEREST in the land described in the title” (W. M. Magno & Sons Appliances, Inc. vs. Isleta, No. 48937-R, March 31, 1977, cited in Federico B. Moreno, Philippine Law Dictionary, 2nd Edition, Page 25).
Section 70 of P. D. 1529 provides that “whoever claims any part or interest in registered land adverse to the registered owner x x x may, if no other provision is made in this Decree for registering the same”, cause the annotation of an affidavit of adverse claim.
What is “interest” within the purview of Section 70 of P. D. 1529? Does it include the legal easement of lateral and subjacent support of a dominant estate?
It is the humble submission of the appellant that the word “interest” in Section 70 of P. D. 1529 refers to and includes, among other things, a legal easement of lateral and subjacent support because a LEGAL EASEMENT, which is established by operation of law (Article 613 in relation to 619, Civil Code), is a legal imposition, lien, charge, encumbrance or servitude upon a servient property without need of prior judicial declaration or a contract. (A legal easement must be contradistinguished from conventional or contractual or voluntary easement).
The word “interest” under Section 70 of P. D. 1529 should not be limited solely to ownership claims. A “real interest” is a “present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate or consequential interest” (Yaptengco vs. Chan, No. 43015-R, May 29, 1974, cited in Moreno, supra, Page 515).
A legal easement over an immovable is a real right, which is a proper subject of an affidavit of adverse claim, especially when such real right has been violated, as in the case at bar.
As a real right, a legal easement over an immovable comes within the ambit of the word “interest” under Section 70 of P. D. 1529.
The trial court erred in concluding that the assertion by the appellant of his right to the legal easement of lateral and subjacent support over the 65-square meter embankment, which forms part of the 130-square meter property of the appellee, amounted to a deprivation of one half of the property of the appellee. Legal easement is a servitude over a servient property. It is not a mode of acquiring ownership over the servient property or a part thereof, as erroneously concluded by the trial court. When the appellant asserted his right to legal easement of lateral and subjacent support over servient estate of the appellee, he did not thereby acquire ownership over one half of such servient property. The appellee remains as the registered owner of her servient estate. However, her ownership rights are now subject to the lawful burdens arising from the legal easement of lateral and subjacent support under Articles 684 to 687 in favor of the appellant.
The enjoyment of a property by its owner is not unlimited. Article 431 of the Civil Code provides that “the owner of a thing cannot make use thereof in such a manner as to injure the rights of a third person”.
In the case at bar, the appellee may enjoy her property, subject to the legal easement of lateral and subjacent support of the appellant. Simply put, the appellee is not justified to excavate and remove the support embankment which was precisely maintained by the developer of Manuela Homes Subdivision for the lateral and subjacent support of the family dwelling of the appellant.
It is noteworthy to state that the appellee bought her property with the embankment (legal easement) already existing in the property at the time she purchased the same.
