EASEMENTS OF SERVITUDES
EASEMENTS IN GENERAL
DIFFERENT KINDS OF EASEMENTS
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.
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.
Easements may be continuous or discontinuous, apparent or nonapparent.
Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man.
Discontinuous easements are those which are used at intervals and depend upon the acts of man.
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.
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.
Easements are inseparable from the estate to which they actively or passively belong.
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.
Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.
MODES OF ACQUIRING EASEMENTS
Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.
In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate;
… and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement.
Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title.
The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment.
The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed.
This provision shall also apply in case of the division of a thing owned in common by two or more persons.
Upon the establishment of an easement, all the rights necessary for its use are considered granted.
The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.
Rights and Obligations of the Owners of the Dominant and Servient Estates
The owner of the dominant estate may make, at his own expense, on the servient estate any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate.
Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary.
The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense…
… provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement.
The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement.
MODES OF EXTINGUISHMENT OF EASEMENTS
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.
The form or manner of using the easement may prescribe as the easement itself, and in the same way.
If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others.