Libro Segundo Título IV. De las servidumbres

A servitude is the encumbrance imposed on an estate for the use of another estate of a different owner or for public utility or communal utility.

However, the owner of two properties may burden one of them with a servitude for the benefit of the other.

The immovable in whose favor the servitude is constituted is called the dominant estate; the one that bears it, the servient estate.

The servitude consists in not doing or in tolerating. For the owner of the servient estate to be required to perform an act, it is necessary that it be expressly determined by law or in the act in which the servitude was constituted.

Servitudes are continuous or discontinuous, apparent or non-apparent.

Continuous are those whose use is or may be incessant, without the intervention of any present act of man; and discontinuous are those whose use requires some present act of man.

Apparent are those that are announced by works or exterior signs arranged for their use and exploitation, and non-apparent are those that present no exterior sign of their existence.

Servitudes are inseparable from the immovable to which they actively or passively belong.

If the immovables change owner, the servitude continues, whether active or passive, in the estate in which it was constituted, until it is legally extinguished.

Easements are indivisible. If the servient estate is divided, each of its portions must tolerate it in the part corresponding thereto. If the dominant estate is divided, each owner thereof may use it in its entirety, but may not alter or aggravate it.

Easements are derived from the natural situation of the tenements, from the obligations imposed by law or from the will of the owners.

Easements that have as their object the interest of private individuals may be established, repealed or modified by the will of such individuals, provided they have capacity to dispose of their property.

Matters concerning legal easements established for public utility or communal utility shall be governed by special laws and regulations and, in the absence thereof, by the provisions of this title.

Upon the constitution of a servitude, all means necessary for its use are deemed granted; and when it is extinguished, these accessory rights also cease, but not those means that have been obtained by a title independent of the servitude.

The forced aqueduct servitude may be imposed, for the conveyance of waters intended for any public utility service, upon prior compensation.

The forced aqueduct servitude may also be imposed for objects of private interest, upon prior compensation, in the following cases:

1°.Establishment or increase of irrigation;

2°.Establishment of baths and factories;

3°.Drainage of lagoons and marshy lands;

4°.Evasion or outflow of waters proceeding from artificial water strikes; and

5°.Outflow of waters from runoff channels and drains.

In the first three cases the servitude may be imposed, not only for the conveyance of the necessary waters, but also for the evasion of the surplus waters.

The owner of the land upon which the forced aqueduct servitude is sought to be imposed may oppose on any of the following grounds:

1.That it is intended to construct an uncovered ditch that is harmful by reason of its water quality;

2.That it is dangerous to the land of the servient estate, when it is intended to be used for purposes of private interest; and

3.That it may be established over other estates with equal advantages for the party seeking to impose it and lesser inconveniences for the party who must bear it.

The forced aqueduct servitude for a purpose of private interest may not be imposed upon buildings, nor upon gardens, nor upon orchards existing at the time the request is made.

When irrigated land that receives water through a single point is divided by inheritance, sale or other title among two or more owners, the owners of the upper part are obligated to give passage to the water as an aqueduct servitude for irrigation of the lower ones, without being able to demand compensation therefor, except agreement to the contrary.

The forced aqueduct servitude may be constituted:

1°.By uncovered ditch when it is not dangerous by reason of its depth or location nor presents other inconveniences;

2°.By covered ditch when its depth, contiguity to dwellings or roads, or any other analogous reason, in the judgment of the competent authority, so requires; and

3°.By pipe or tubing, when waters belonging to others may be absorbed; when the conveyed waters may infect others, absorb harmful substances or cause damage to works or buildings; and whenever it proves necessary from the record formed for that purpose.

The compulsory aqueduct servitude may be established temporarily or perpetually. It shall be deemed perpetual for the purposes of this Code when its duration exceeds five years.

If the servitude were temporary, there shall be paid in advance to the owner of the land double the rent that would correspond for the part occupied from him, with the addition of the amount of the damage and defects to the remainder of the estate, including those arising from its division by the interposition of an irrigation ditch.

Moreover, it shall be the responsibility of the owner of the dominant estate to restore things to their former state, the servitude having ended. If it were perpetual, there shall be paid the value of the occupied land and of the damage and losses caused to the remainder of the estate.

All works necessary for its construction, maintenance and cleaning shall be at the expense of the party who has promoted and obtains the aqueduct servitude. To that end, he shall be authorized to temporarily occupy the lands indispensable for the deposit of materials, upon prior compensation for damage and losses, or sufficient guarantee where the latter are not easily foreseeable or the interested parties do not agree to such compensation. The latter may compel him to perform the works and cleanings necessary to prevent stagnations or filtrations causing deteriorations.

Upon establishment of the forced aqueduct servitude, the width that the ditch and its banks must have shall be fixed, in view of the nature and configuration of the land, according to the quantity of water to be conveyed. If, because the ditch is of ancient construction or for another cause, the width of its bed is not determined, it shall be fixed in accordance with the foregoing bases, when requested by any of the interested parties.

The right of way along its margins, for its exclusive service, is inherent to the forced aqueduct servitude.

If the aqueduct crosses public or private ways, of whatever nature they may be, the person who has obtained the concession shall be obligated to construct and maintain the necessary culverts, channels and bridges; and if it is to cross other aqueducts, it shall proceed in such a manner that it neither retards nor accelerates the course of the waters, nor diminishes their flow, nor adulterates their quality.

When the owner of an aqueduct crossing lands belonging to another requests to increase its capacity so that it receives a greater flow of water, the same rules as for its establishment shall be used.

The owner of an aqueduct may fortify its margins with sod, palisades, walls or loose-stone embankments, but not with plantings of any kind. The owner of the servient estate likewise may not make any planting or any cultivation operation on the same margins, and roots that penetrate into them may be cut by the owner of the aqueduct.

The aqueduct servitude does not prevent the owner of the servient estate from enclosing it and fencing it, as well as from building over the aqueduct itself, in such a manner that the latter suffers no harm nor the necessary repairs and cleanings, which the owner of the aqueduct shall carry out in a timely manner upon giving advance notice to the owner, lessee or administrator of the servient estate, are rendered impossible. If for the cleaning it should be necessary to demolish part of any building, the cost of its repair shall be borne by whoever built over the aqueduct, in the event of not having left the corresponding openings or holes for such service.

The owner of the servient estate may build over the aqueduct, bridges to pass from one part of the estate to the other; but he shall do so with the necessary solidity and in such a manner that the dimensions of the aqueduct are not diminished nor the course of the water obstructed.

In every ditch or aqueduct, the water, the bed, the banks and the margins shall be considered as an integral part of the estate or building to which the waters are destined.

No person may, in the cases and conditions specified in the preceding articles, construct a building or bridge over another's ditch or aqueduct, nor divert water, nor make use of the products thereof, nor of those of its banks, nor utilize the force of the current, without the express consent of the owner. Nor may the owners of the estates traversed by a ditch or aqueduct, or along whose boundaries it runs, claim a right of possession to the use of its channel or banks, unless based on titles of ownership expressing such right.

The concession of the aqueduct servitude over third-party properties shall lapse if, within the time limit that may have been fixed, the concessionaire fails to make use thereof; such lapse shall operate without prejudice to paying to the owner of each servient property the corresponding compensation.

Urban easements for aqueduct, canal, bridge, sewer, drain and others established for the public and private service of towns, buildings, gardens and factories shall be governed by general and local provisions.

Those arising from private contracts that do not affect the attributions of the municipalities shall be governed by the laws applicable to the contract.

In the same cases as the aqueduct servitude, the compulsory abutment servitude may be imposed when one who intends to build a dam is not the owner of the banks or lands on which to support it.

Once the compulsory servitude of dam abutment has been decreed, the owner of the servient estate or estates shall be paid the value corresponding to the occupation of the land; and, in addition, shall be indemnified for the damage and losses suffered by the properties.

Whoever, in order to irrigate his estate or improve it, needs to construct sluice gates or a divider in the irrigation ditch or channel through which he is to receive it, without burden or diminution for the other irrigators, may require the owners of the banks to permit its construction, upon prior payment of damage and losses, including those arising from the new servitude.

Compulsory servitudes of watering place and of drawing water may only be imposed for reasons of public utility in favor of a town or hamlet, upon prior corresponding compensation.

These easements shall not be imposed on ordinary wells, cisterns or reservoirs, nor on buildings or lands enclosed with a wall.

The watering-place and water-drawing easements carry with them the obligation, on the servient estates, to give passage to persons and livestock to the estate where they are to be exercised, the compensation also extending to this service.

The prescriptions established for the granting of aqueduct servitudes are applicable to the concessions of this class of servitudes; when decreeing them, the width of the way or path that is to lead to the watering place or point designated for drawing water shall be fixed, according to its object and the circumstances of the locality.

The owners of servient tenements may vary the direction of the way or path intended for the use of these easements, but not its width or entrance, and in any case without the variation impairing the use of the easements.

The owner of an estate landlocked among other estates belonging to others that has no outlet to the public road, or that cannot procure such outlet for itself without excessive expense or difficulty, has the right to demand passage through the neighboring estates, for the use and exploitation of that same estate. The owner of a rural estate, whether or not it has an outlet to the public road, may also demand passage through the neighboring estates to the station of any railroad. In both cases and while the judicial authorities render a final decision, such passage may be provisionally established by the latter, upon prior guarantee of compensation and of damage and losses. 81 82

Compensation equivalent to the value of the necessary land and to the harm caused by such encumbrance shall always be owed. The same provision shall apply to one who, having passage through another's property, needs to widen the road to drive vehicles for the same purposes. 84 85 86

The action to claim that compensation is subject to a limitation period; but, even if the limitation period expires, the servitude obtained shall subsist.

The owner of the servient estate has the right to designate the place where the servitude of passage is to be established. If the owner of the dominant estate should disagree because the designated place is impracticable or very burdensome for the latter, the owner may resort to the competent judge so that, after hearing the opinion of experts, the judge may decide what is most convenient, seeking to reconcile the interests of the two estates.

If there are several estates through which passage may be given, the one obligated to the servitude shall be that through which the distance is shortest. If such distance is equal through two or more estates, the judge shall designate which of them is to give passage.

In the servitude of passage, the width thereof shall be that which suffices for the needs of the dominant estate, in the judgment of the judge, and may neither exceed six meters nor be less than two, except by agreement of the interested parties.

If an estate is left enclosed on all sides by reason of sale, exchange, or division, the sellers, exchangers, or co-partitioners are obligated to grant passage without any compensation.

If, once the servitude of way has been obtained, it ceases to be indispensable for the dominant estate by reason of the acquisition of other lands affording it convenient access to the road or by other means, the owner of the servient estate shall have the right to request to be relieved of the servitude, restoring what was paid for the value of the land upon establishment thereof.

When the servitude of passage has as its object a public service, it must be granted through the least prejudicial point to the servient estate; but always seeking the greatest ease and shortest distance to the point where the service is to be provided.

Every owner must allow entry and passage through their property, whenever absolutely necessary to construct or repair a wall or work of particular interest to the neighbor, or in the common interest of both.

When, in order to establish private telephone communications between two or more estates, or to conduct electrical energy to an estate, it is necessary to place poles or string wires on lands of another's estate, the owner thereof must permit it, upon the corresponding compensation, which, in the absence of agreement between the parties, the judge shall fix in the respective proceedings.

This servitude includes the right of transit of persons and that of conveyance of the materials indispensable for the construction and supervision of the line.

Easements arising from the conduction of electrical energy for towns and from the passage of aerial vehicles shall be governed by special laws.

When a rural or urban estate is enclosed within another or others, so that it has no direct communication with any road, canal or public street, the owners of the surrounding estates shall be obligated to allow through them the drainage of the central one. The dimensions and direction of the conduit shall be fixed by the judge, following a prior report of experts and a hearing of the interested parties, observing, insofar as possible, the rules given in this chapter.

The exercise and extent of easements established by the will of the owner are governed by the respective titles and, in the absence thereof, by the provisions of this chapter.

If there are several owners of an estate, no servitude may be imposed except with the consent of all.

If there are several owners, and only one of them acquires the servitude over another estate in favor of the common property, all the owners may avail themselves of it, remaining obligated to the encumbrances and to the covenants with which it was acquired.

Those who have only resolvable ownership, such as one to whom a parcel has been bequeathed under an unfulfilled condition, and others of like kind, may constitute a servitude; but it becomes without effect from the moment the right of the constituting party is resolved.

The owner of a mortgaged estate may constitute a servitude; but if for that reason the value thereof were to decrease so as to prejudice the creditor, the latter shall have the right to have the estate sold free of the servitude.

The servitude may be acquired in favor of an estate by the possessors thereof, whether in good faith or in bad faith; and it may likewise be acquired by those who do not enjoy free administration of their property and by administrators of another's property for the benefit thereof.

Continuous and apparent servitudes are acquired by any legal title, including prescription upon the lapse of ten years.

Continuous non-apparent easements, and discontinuous easements, whether apparent or not, may not be acquired by prescription but by other legal title. Possession, even if immemorial, is not sufficient to establish them.

Whoever claims to have a right to a servitude must prove, even if he is in possession thereof, the title by virtue of which he enjoys it.

The lack of constitutive titles to servitudes that cannot be acquired by prescription may only be supplied by judicial confession or recognition made in a public deed by the owner of the servient estate, or by final judgment declaring the existence of the servitude.

The owner of the dominant estate must perform at his own expense the works that are necessary so that no greater burden than that resulting therefrom is caused to the owner of the servient estate by reason of the servitude. If damage is caused by his negligence or omission, he shall be obligated to compensation.

The owner of the servient estate shall not in any manner impair the servitude constituted over it.

If the place originally designated for the use of a servitude comes to present serious inconveniences to the owner of the servient estate, the latter may offer another place that is convenient to the owner of the dominant estate, who may not refuse it if he is not prejudiced.

The change of location for the exercise of a servitude may also be admitted at the instance of the owner of the dominant estate, if he proves that the change affords him a notable advantage and causes no damage whatsoever to the servient estate.

The owner of the servient estate may execute the works that make the servitude less burdensome, if no prejudice whatsoever to the dominant estate results therefrom.

If any loss to the dominant estate should follow from the execution of said works, the owner of the servient estate shall be obligated to restore things to their former state, and to indemnify the damage and losses.

If the owner of the dominant estate opposes the works referred to in Article 813, the dispute shall be resolved summarily.

Any doubt regarding the use and extent of the servitude shall be decided in the sense least burdensome to the servient estate, without rendering impossible or hindering the use of the servitude.

Voluntary servitudes are extinguished:

1°.By non-use.

When the servitude is continuous and apparent, by non-use for three years, counted from the day on which the apparent sign of the servitude ceased to exist. When it is discontinuous or non-apparent, by non-use for five years, counted from the day on which it ceased to be used because the owner of the servient estate performed an act contrary to the servitude, or prohibited its use. If there was no contrary act or prohibition, even if the servitude has not been used, or if there were such acts but use continues, the time of the limitation period does not run;

2°.When the estates reach, without fault of the owner of the servient estate, such a state that the servitude cannot be used.

If subsequently the estates return to their prior state so that it may be used, it shall be reestablished, unless three years have elapsed, or unless, from the day on which it could be used again, sufficient time for the limitation period has elapsed;

3°.By gratuitous or onerous release, made by the owner of the dominant estate; and

4°.When constituted by virtue of a revocable right, the time limit expires, the condition is fulfilled or the circumstance that must put an end to it supervenes.

If the dominant estate belongs to several pro indiviso owners, the use by one of them benefits the others to prevent the limitation period.

If among the owners there is one against whom, under special laws, the limitation period cannot run, it shall not run against the others.

Legal servitudes established for public utility or communal utility are lost by non-use for five years, if it is proved that during such time another servitude of the same nature in a different place has been acquired by the person who enjoyed those servitudes.

The common uses of public waters and the concessions for special uses shall be subject to what is established by the respective law and regulations.