Q. Dear Atty. Wong, Please help us with our conundrum on how to address our concern. We intend to fence our farm to keep it safe from stray farm animals but our land is traverse with a dried creak; can we fence our lot with the creak inside or do we provide easement zone along its bank, if so, how many meters is the easement zone; how about on a lake or river? Thank you for whatever your advice will be to this matter. F.T.
ANS: Even assuming that the property in question is titled and its boundary traverse beyond the creek as described in the title and thus technically the owner thereof can exercise the attributes of ownership under Art.630 the Civil Code of the Philippines, such ownership is retained by the servient owner over the portion on which the easement is established, hence subject to easement or servitude. This has been the jest of the ruling of the Supreme Court, in the case of PILAR Development Corporation vs Ramon Dumadag,et al. G.R. No.194336-March 11,2013. Supreme Court –Third Division, wherein a creek over the land is subject to servitudes or easement.
The land title of the land only proves that the person described in the title, is the owner in fee simple of the respective real properties described therein. It does not exempt liens and encumbrances imposed by law.
The Civil Code defines easement as an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or of one or more persons to whom the encumbered estate does not belong.
There are two kinds of easement according to source: by law or by will of the owners – the former are called legal and the latter voluntary easement. A legal easement or compulsory easement, or an easement by necessity constituted by law has for its object either public use or the interest of private persons.
“An easement or servitude is a real right on another’s property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his or her property, for the benefit of another person or tenement; it is jus in re aliena, inseparable from the estate to which it actively or passively belongs, indivisible, perpetual, and a continuing property right, unless extinguished by causes provided by law.”
Note further that under the Civil Code , public property and part of public dominion could not be owned. 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;
(5) Rain waters running through ravines or sand beds, which are also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of public works, even if constructed by a contractor; (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 the moment they leave such lands;
(9) The waste waters of fountains, sewers and public establishments.
The applicability of DENR A.O. No. 99-21 dated June 11, 1999, which superseded DENR A.O. No. 97-0519 dated March 6, 1997 and prescribed the revised guidelines in the implementation of the pertinent provisions of Republic Act (R.A.) No. 1273 and Presidential Decree (P.D.) Nos. 705 and 1067, cannot be doubted. Inter alia, it was issued to further the government’s program of biodiversity preservation. Aside from Section 2.1 above-quoted, Section 2.3 of which further mandates:
Sec. 2 of DENR A.O. No. 99-21 states as follows:
2.1 Original Surveys:
2.1.a Public Lands:
All alienable and disposable (A and D) lands of the public domain shall be surveyed pursuant to Section 1 Par. (1) of R.A. 1273 [C.A. No. 141, Section 90(i)] whereby a strip of forty (40) meters wide starting from the banks on each side of any river or stream that may be found on the land shall be demarcated and preserved as permanent timberland.
Likewise, to be demarcated are public lands along the banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of :
1) three (3) meters in urban areas,
2) twenty (20) meters in agricultural areas and
3) forty (40) meters in forest area, along their margins which are subject to the easement for public use in the interest of recreation, navigation, floatage, fishing and salvage.
Running in same vein is P.D. 1067 or The Water Code of the Philippines which provides:
“Art. 51. The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind”. (Underscoring supplied)
In view of the foregoing, it is the view of this representation that the creek or any portion of the urban, agricultural or forested areas where the land is situated could not be fenced even notwithstanding that portion of the property is covered by title, as the subject property falls within the purview or ambit of Art.502 of the Civil Code and DENR A.O. No.99-21 dated June 11,1999, mentioned above.
This has been the jest of the ruling of the Supreme Court, in the case of PILAR Development Corporation vs Ramon Dumadag,et al. G.R. No.194336-March 11,2013. Supreme Court –Third Division, where in a creek over the land is subject to servitudes or easement.
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