Property Notes

PROPERTY NOTES

The right and interest which a man has in lands and chattels to the exclusion of others. The sale 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 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. 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. It embraces every species of valuable right and interest, including real and personal property, easements, franchises, and

hereditaments. All things are not the subject of property; the sea, the air and the like cannot be appropriated; everyone 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.

The ownership of property implies its use in the prosecution of any legitimate business which is not a nuisance in itself.

I. Movable and Immovable [See. RA 10066]A. Immovables – property which, from its nature, destination, or the object to which it is applied, cannot move itself or be

removedB. Movables

1. Such subjects of property as attend a man’s person wherever he goes, in contradistinction to things immovable2. Things movable by their nature are such as may be carried from one place to another, or cannot be removed without

an extraneous power, as inanimate things3. Movables are further distinguished into such as are in possession, or which are in the power of the owner, and such as

are in the possession of another, and can only be recovered by action, which are therefore said to be in action, as a debt.

II. Absolute or QualifiedABSOLUTE QUALIFIED

that which is our own without any qualification whatever

consists in the right which man have over wild animals which they have reduced to their own possession, and which are kept subject to their power

a bailee of goods, though not the owner, has a qualified property in them; while the owner has the absolute property

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.

III. Corporeal and IncorporealCORPOREAL INCORPOREAL

comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise, and the like

consists in legal rights, as choses in action, easements, and the like

IV. Use is the real side of property. The right of using a thing indefinitely is an essential quality of absolute property, without which absolute property can have

no legal existence. This right of user necessarily includes the right and power of excluding others from the land. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner’s property. If the right of indefinite user is an essential element of absolute property or complete

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ownership, whatever physical interference annuls this right, takes property, although the owner may still have left to him available rights in the article of a more limited and circumscribed nature.

V. How Property is LostA. By the act of man

1. Alienationa. But in order to do this the owner must have a legal capacity to make a contract.

2. Voluntary Abandonment of the thingsa. 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.b. 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.B. By operation of law

1. By forced sale, under a lawful process of the property of a debtor to satisfy a judgment, sentence or decree rendered against him, to compel him to fulfill his obligations.

2. By confiscation, or sentence of a criminal court3. By prescription4. By civil death5. By capture by a public enemy

C. By the act of God1. Death or total destruction of a thing

In some cases, the moment that the owner loses his possession, he also loses his property or right in the things [Ex: Animals Ferae Naturae]. 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.

VI. Real Property Land, and generally whatever is erected or growing upon or affixed to land; also rights issuing out of, annexed tom and

exercisable within or about the same. Annexations made by a stranger to the soil of another without his consent becomes the property of the owner of the soil.

Corporeal hereditaments comprise land and whatever is erected or growing upon or affixed thereto, including whatever is beneath or above the surface. Houses, trees, growing crops, and other articles affixed to the soil though usually classed as realty, may under certain circumstances and for certain purposes acquire the character of personalty.

Profits which are the spontaneous fruits of the earth or its permanent fruits are real estate, but the corn and other growth of the earth which are produced annually by labor and industry, called fructus industriales, are regarded as personal chattels.

A dam is not necessarily real estate. If built by one person on the land of another, with his consent, it would be personal estate.

There are a large number of articles known as fixtures, which, though originally wholly movable and personal in their nature, have acquired, by having been affixed to real estate or applied to use in connection with it, the character of realty.

The intention of the parties immediately concerned, who have agreed that property annexed to the soil shall retain its character as personalty, will prevail except as against purchasers (innocent) without notice, unless the property be of such nature that it necessarily becomes incorporated into and a part of the realty by the act and manner of annexation.

Equity will, in many instances, for the sake of enforcing and preserving the rights of parties interested, regard realty as converted into realty, although no such change may actually have taken place.

Trees are part of the real estate while growing and before they are severed 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 the 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 no right of action for the necessary trimming of them for the installation of an electric-lighting system for the municipality. Hazlehurst v. Mayes, 36 South 33 Moore v. Light Co., 79 S.E. 596 Norman M. & G. Co. v. Bethurem, 139 Pac. 830


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. Robinson v. Clapp, 32 Ath. 939 Lyman v. Hale, 27 Am. Dec. 728 Comfort v. Everhardt, 35 W.N.C. Pa. 364 Gibson v. Denton, 38 NY Supp. 554

VII. Public Use – implies the use of many, or by the public. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual.

VIII. Eminent Domain The superior right of property subsisting in a sovereignty, by which private property may in certain cases be taken or its use

controlled for the public benefit, without regard to the wishes of the owner. The power to take private property for public use. The right of every government to appropriate otherwise than by taxation and its police authority (which are distinct

powers) private property for public use.IX. Land

Any ground, soil, or earth whatsoever; at common law, the term land has a two-fold meaning. In its more general sense, it includes any ground, soil, or earth whatsoever; in its more limited sense, the term land denotes the quantity and character of the interest or estate which the tenant may hold in land. The land is one thing, and the estate in land is another thing, for an estate in land is a time in land or land for a time.

Land has been held to include servitudes, easements, rents and other incorporeal hereditaments, and all rights thereto and interests therein, equitable as well as legal, and to be synonymous with the terms real estate and real property.

Land has an indefinite extent upward as well as downward; therefore, land legally includes all houses or other buildings standing or built on it, and whatever is in a direct line between the surface and the centre of the earth.

All land is held subject to the right, in the state, of taxation and eminent domain. The right to put his land to the most profitable use for his own benefit is one of the landowner’s privileges, but how far this right extends has been the subject of much adjudication by the courts.

X. Rights Real rights are rights of a person which are enforceable against all or the whole world. Personal rights are the rights of person enforceable against definite passive subjects for the fulfillment of prestations which

may be obligation to give, to do or not to do. Examples are a creditor’s right to collect a loan from a particular debtor and the right of an obligee to demand specific performance from an obligor.

The object of real right is a specific corporeal thing while the object of personal right consists in the act or prestation of a particular obligor or debtor. Real right is enforceable against all while personal right is enforceable against definite persons. Real right is more or less permanent while personal right is merely temporary. The destruction of the object in real right extinguishes the right while the personal right may survive the thing’s destruction because of the object of personal right is prestation.

Limitations on ownership may be fixed by the Constitution, by statutes, or by voluntary acts like limitations fixed in contracts and wills.

The traditional rights included in ownership are:1. Right to use2. Right to enjoy3. Right to dispose4. Right to abuse5. Right to recover6. Right to possess

XI. Actions for Recovery of PropertyA. Action to Eject

Within 1 year from the accrual of right MTC Forcible Entry; Unlawful Detainer Barangay certificate to file action required

B. Action Publiciana


Recover possession after 1 year from the accrual of right but before 10 years. MTC/RTC = depending on value of property

C. Action Reinvindicatoria Recover ownership and possession within 30 years from the accrual of right MTC/RTC = depending on value of property

D. Replevin Recover personal property possessed by another; bond required MTC/RTC = depending on value of property

XII. Ownership/Possession distinguished Owner not be entitled to possession (tenant, lessee, possessor w/ right to retain until indemnified for improvements made) Judgment for ownership doesn’t necessarily include possession Possession can ripen into ownership

XIII. Ownership The right by which a thing belongs to someone in particular, to the exclusion of all others 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 who at a given time has the whole power of use and disposal Fleming v. Sherwood, 139 N.W. 101

XIV. Owner 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 retrains his right.

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 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 cut the wood, demolish the buildings, build new ones, and dig wherever he may deem proper for minerals, etc., 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.

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 a title to it by prescription or under the statute of limitations.

A person or entity with a right to control and dispose of an interest in real or personal property or for whose benefit such a right must be exercised.

Beneficial owner (also called equitable owner) – a person to whose benefit another (the legal owner) holds property. Joint owner – one of the owners of equal undivided interests in property with right of survivorship; informally, any co-

owner; a person who shares ownership of something with another person upon any legally feasible terms. Legal owner – a person with the actual legal right to control or dispose of an interest in property, either for his own benefit

or as a trustee or constructive trustee for the benefit of another (the beneficial owner or equitable owner) Record owner – the person whose name appears in a public record as the owner of land and thus as the person liable for

property taxes, or in the records of a corporation as the owner of stocks and thus as the person entitled to receive dividends and vote on corporate matters.

Owner Pro Hac Vice – one who has control of a ship pursuant to a bareboat charter from the true owner of the vessel; charterer of a vessel under a bareboat charter; demisee.

XV. Accession The doctrine of property arising from accessions is grounded on the rights of occupancy. It is said to be the 6 kinds in the

Roman law:1. That which assigns to the owner of a thing its products, as the fruits of trees, the young of animals.2. 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. As where wine, bread or oil is made of another man’s grapes or olives.3. That which gives the owner of land new land formed by gradual deposit.4. That which gives the owner of a thing the property in what is added to it by way of adorning or completing it, as if a

tailor should use the cloth of B in repairing A’s coat, all would belong to A; but B would have an action against both A and the tailor for the cloth so used.

5. That which gives islands formed in a stream to the owner of the adjacent lands on either side.


6. That which gives a person property in things added to his own so that they cannot be separated without damage. 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. If a man 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; for every building is an accession to the ground upon which it stands; and the owner of the ground, if liable at all, is only liable to the owner of the materials for the value of them. And the same rule holds where trees, vines, vegetables, or fruits are planted or sown in the ground of another.

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.

The increase of an animal, as a general rule, belongs to the owner of the dame or mother. The tree belongs to the owner of the land on which the root is, and its fruit is to the owner of the tree although limbs

overhang a neighbor’s land. 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 the pay.

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 uncoverted 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.

But, 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. So, if the change had 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. Wooden-Ware Co. v. US, 106 US 432 Shyder v. Vaux, 21 Am. Dec. 466 Betts v. Lee, 4 Am. Dec. 368 Williard v. Rice, 45 Am. Dec. 226

XVI. Accretion The increase of real estate by the addition of portions of soil, by gradual deposition through the operation of natural causes,

to that already in possession of the owner. (The term alluvion is applied to the deposit itself, while accretion rather denotes the act.)

It is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible operation of natural causes.

A reliction formed by the gradual drying up of a lake belongs to the riparian owners. Ellinger v. R. Co., 20 S.W. 800 City of St. Louis v. R. Co., 21 S.W. 202 Poijuter v. Chipman, 32 Pac. 690 Noyes v. Collins, 61 N.W. 250 Ocean City Ass’n v. Shriver, 46 Atl. 690

XVII. Adjunction The attachment or union permanently of a thing belongs to one person to that belonging to another. (by inclusion,

soldering, sewing, construction, writing, painting) 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.

XVIII. 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, as by a current or by

waves, or from 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.

The proprietor of the bank increased by alluvion is entitled to the addition, thus being regarded as the equivalent for the loss he may sustain from the encroachment of the waters upon his land. Hagen v. Campbell, 33 Am. Dec. 267 Municipality No. 2 v. Cotton Press, 36 Am. Dec. 624

XIX. Avulsion


The removal of a considerable quantity of soil from the land of one man and its deposit upon or annexation to the land of another, suddenly and by the perceptible action of water.

In such case, the property belongs to the first owner. Bouvier v. Stricklett, 59 N.W. 550 County of St. Clair v. Lovingston, 23 L. Ed. 59

XX. Reliction – an increase of the land by the retreat or recession of the sea or a riverXXI. Improvements

Real or personal property effected by the expenditure of labor or money for the purpose of rendering it useful for other purposes than those for which it was originally used, or more useful for the same purposes. These include repairs or additions to buildings, and the erection of fences, barns, etc.

As between the rightful owner of lands and an occupant who in good faith has put on improvements, the land with its improvements belongs to the rightful owner of the land, without compensation for the increased value at common law, though the rule may be otherwise in equity, and by statute in some states.

XXII. 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. This, if a house and land be conveyed, everything thereof and which is in use as incident or appurtenant thereto. Under this term are included the cartilage, a right of way, easements, under some circumstances, a turbary, and generally, anything necessary to the enjoyment of a thing [but it is the general rule that land cannot pass as appurtenant to land].

Appurtenances 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 [i.e. boats and cable; rudder and cordage; fishing-stores; chronometers]

XXIII. Navigable Waters Those waters which afford a channel for useful commerce The test by which the character of a stream as public or private is determined, is its navigability in fact. Common law: All rivers which are found of sufficient capacity to float the products of the mines, the forests, or the tillage of

the country through which they flow, to market, or which are capable of use for the floating of vessels, boats, rafts, or logs are subject to the free and unobstructed navigation of the public, independent of usage or of legislation.

Navigable streams are highways. What is a navigable steam is a mixed question of law and fact.

Morgan v. King, 91 Am. Dec. 58 The technical title to the beds of navigable rivers is a qualified one; it is subordinate to the public right of navigation and

subject to the absolute power of congress over the improvement of navigable rivers.XXIV. Lake

A body of water surrounded by land, or not forming part of the ocean, and occupying a depression below the ordinary drainage level of the region.

No riparian owner could acquire title to the bed of any lake however small. Watuppa Reservoir Co. v. City of Fall River 18 N.E. 465 Shively v. Bowlby 152 U.S. 13 Gouverneur v. Ice Co. 31 N.E. 865 Stuart v. Greenyea 117 N.W. 655 State v. Narrows Island Club 5 S.E. 411 Priewe v. Imp. Co 67 N.W. 918 Madson v. Water Co. 82 Pac. 718

XXV. River A natural stream of water flowing betwixt banks or walls in a bed of considerable depth and width, being so called whether

its current sets always one way or flows and reflows with the tide. At common law, the bed or soil of all rivers subject to the ebb and flow of the tide, to the extent of such ebb and flow,

belongs to the state; the ownership of the state extends to the high-water mark. Webb v. Demopolis, 13 South 289 Kaukauna Water Power Co. v. Canal Co., 142 U.S. 254 Ensminger v. People, 95 Am. Dec. 495

The banks of public rivers are private property of the adjacent owners as fully as their other kind. The public has no right to land upon them or upon the share adjacent thereto. There is no right of way along the margin of lakes and navigable rivers


unless acquired by express grant or prescription. The banks of a river are not subject to the servitude of use by navigators. They cannot land on the banks against the will of the owner except in case of peril, in which case vessels may land, either boat or cargo, at any point that safety may require. [See Water Code]

Any obstruction of rivers without legislative authority is a nuisance, and any persons having occasion to use the river may abate the same, or if injured thereby, may receive his damages from its author. Spokane Mill Co. v. Post, 50 Fed. 429

XXVI. Quieting of Title Any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact

invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title… Cleansing… An action to quiet title of real property not in possession of another does NOT prescribe If the real property is in possession of another, it may be acquired by acquisitive prescription.

XXVII. Co-OwnershipA. Requisites

1. Plurarity of subjects2. Unity of object [absence of division]3. Proportionate shares of such subjects

B. How created1. By contracts2. By law3. By will4. By chance [confusion or commixtion]

C. Kinds1. Ordinary [where right of partition exists]2. Compulsory [where right of partition doesn’t exist]3. Legal [created by law]4. Contractual5. Universal6. Singular/particular

D. Characteristics1. 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.2. A co-owner’s share is absolutely owned by him and he may dispose of it as he pleases;3. In regard to the use, enjoyment and preservation of the property, the co-owners observe mutual respect.

E. Distinguished from Partnership1. Co-ownership is created not only by agreement but also by law and other means while partnership is created by

agreement only.2. Purpose of partnership is primarily for profit, while the purpose of co-ownership is principally common enjoyment of

the property owned in common.3. A co-owner may ordinarily sell to a 3rd person his interest in the co-ownership without the consent of the other co-

owners while a partner may not sell his interest in the partnership without the consent of his co-partners.4. Co-ownership is not a juridical person while a partnership has its own juridical personality.5. Death of a co-owner does not dissolve the co-ownership while the death of a partner dissolves the partnership.

F. Distinguished from Joint Tenancy1. 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. A co-owner’s share may be attached or levied upon in execution. Co-owned property cannot be validly partitioned in:

Conjugal partnership [as long as it validly exists] Party wall

XXVIII. Joint Tenant


Joint tenancy exists where there has been a limitation of the same estate, by deed, will or parol, to two or more persons, without words of severance. Joint tenants are said to have four unities, time, title, interest and possession. The estate of both must arise under the same limitation, but under the statute of uses the necessity that the titles of all the joint tenants should commence at the same time is avoided.

Every kind of property, real and personal, may be so held. Neither a devise by one joint tenant nor an encumbrance created by one joint tenant defeats the full right of the survivor. If one of two joint tenants dies, the survivor becomes solely entitled to the estate; but not as against a grantee inter vivos of

one of the joint tenants; nor against a judgment debt on which execution had been levied in the lifetime of the debtor. The presumption is that all tenants holding jointly hold as tenants in common, unless a clear intention to the contrary be

shown. Joint tenants at common law have no right to compulsory partition; they convey to each other by release, in which words of

inheritance are unnecessary. They must plead and be impleaded jointly. Jus Accresendi

The right of survivorship According to the general rule a person could not die partly testate and partly intestate, and if any part of the estate was

unprovided for, either by the oversight of the testator or any of the heirs, it was ratably distributed among the heirs; so if the same thing were left to two or more persons each took an equal share; if one of them should die before he had received the legacy, the share of the one so dying passed to the remaining joint legatee or legatees by this right. It has been suggested that the germ of this right is to be found in the succession by necessity.

Estate in Common An estate held in joint possession by two or more persons at the same time by several and distinct titles. This estate has

the single unity of possession, and may be of real or personal property. Where one dies intestate, the joint ownership of his property by his children is generally that of tenants in common.

XXIX. Water Course This term is applied to the flow or movement of the water in rivers, creeks and other streams. A water-course is a stream of water flowing in a definite channel, having a bed and sides or banks and discharging itself into

some other stream or body of water. There must be a supply which is permanent in the sense that similar conditions will always produce a flow of water in the

same channel, and that the conditions recur with some degree of regularity, so that they establish and maintain for considerable periods of time a running stream.

The essential characteristics of a water course are a channel consisting of a well defined bed and banks, and a current of water.

The bed, which is a definite and commonly a permanent channel, is the characteristic which distinguishes the water of a river from mere surface drainage flowing without definite course or certain limits, and from water percolating through the strata of the earth.

The banks of a water course are the elevations which confine the waters tot their natural channel when they rise. The water of a water course must have a current. The flow of the water must usually be in one direction, and by a regular channel having both a source and a mouth.

The controlling distinction between a water course and pond or lake is that in the former case, the water has a natural motion or a current, while in the latter the water is, in its natural state, substantially at rest. And this is so independently of the size of the one or of the other. [In the absence of a permanent source of supply, there can be no water course in its legal sense.]

XXX. Waters 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 1st 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 usufruct of the stream which flows through it. That running water is publici juris and that no one could claim the ownership of the corpus of the water of a steam was held in U.S. v. Inv. Co, 156. Fed. 123.

By the modern as well as the older authorities, the right of the riparian owner in the water is usufructuary, and consists not so much in the fluid itself or in its uses. The law does not recognize a riparian property right in the corpus of 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.

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 purpose. The right of a riparian proprietor on a non-navigable stream to the use of its ordinary flow of water, undiminished by an

unreasonable use by an upper proprietor, is not an easement or appurtenance, but is inseparably annexed to the soil and is part and parcel of the land itself. One who diverts water from a flowing stream for a beneficial purpose may have the use of it so long as he conforms to the law regulating such matters.

Riparian owners may not divert or sell running water for general use, and are limited in their own use of it to ordinary purposes incident to the enjoyment of the riparian land, and in exceptional cases to extraordinary uses upon the land itself, if such use does not unreasonably decrease the quantity of the water or impair its quality. But the extraordinary use must be upon the riparian land.

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 or over 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 common law is that there exists no such natural easement or servitude in favor of the owner 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 he proprietor of the inferior or lower tenement or estate may, if he chooses, 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. Hoyt v. Hudson, 9 Am. Rep. 473 Walker v. R. Co., 165 U.S. 593 Earl v. De Hart, 72 Am. Dec. 395 Ribordy v. Murray, 52 N.E. 325 Stillwater Water Co. v. Farmer, 99 Am. St. Rep. 541 Wadsworth v. Smith, 26 Am. Dec. 525

XXXI. PossessionA. Elements

1. The thing or corpus2. Intention to possess – animus possidendi

B. Forms1. Absolute ownership or valid title2. Joint title [like possession of one who acts in good faith]3. Not in concept of owner but based on a juridical title as possession of a lessee4. Without any right like possession of a property stolen by a thief

C. How acquired1. By the material occupation of a thing [physical apprehension which includes tradicion brevi manu and tradicion

constitutum possessorium]2. By exercise of a right3. By the fact that it is subject to the action of our will [tradicion frisida; tradicion simbolica; tradicion longa manu]4. By proper acts and legal formalities established for acquiring property [like the possession given by the sheriff in

accordance with proper legal steps] Acquisition in good faith refers to the possession in the concept of owner and not that of a lessee. If the owner uses force to obtain possession of property, the owner’s possession will not be legally recognized. Under Art. 539 – the possessor-movant should have been in prior, peaceful possession of the property A lessee, an employee, a pledge, an antichretic creditor, a trustee and a co-owner cannot claim title by acquisitive

prescription because they possess the property not in the concept of owner. The detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in

his name.


It expresses the closest relation that can exist between a corporeal thing and the person who possess 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. Constructive possession is that which exists in contemplation of law, without actual personal occupation. In order to complete a possession, two things are required: that there be an occupancy, apprehension, or taking; that the

taking be with an intent to possess [animus possidendi] Possession is the occupation of anything with the intent of exercising the rights of ownership in respect to it. “An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and

weak. To this day, it continues so with regard to chattels. For many purposes the true owner of gods is the person, and the only person, entitled to immediate possession.”

“Legal possession does not necessarily coincide either with actual physical control… or with the right to possess, and it need not have a rightful origin.”

“Possession is to be protected because a many by taking possession of an object has brought it within the sphere of his will; he has extended his personality into or over that object.”

“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 is 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. It is said, however, that the bald proposition that possession is a good title against a wrongdoer is inaccurate if stated entirely without qualification, and that the true limits of the bare possessor’s right to recover damages for interference with his possession are: 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. 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. Whether the true owner be shown or not, the possessor may recover damages for the taking or trespass, nominal or

substantial, as the taking is or is not attended with aggravation. Principles as to possession in COMMON LAW:

1. Possession in fact is such actual exclusive control as the nature of the thing admits.2. 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.3. 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.4. 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 extended to persons deriving title from him in good faith.

5. 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.

Failure to take possession is sometimes considered a badge of fraud, in the transfer of personal property. Possession of real property will be presumed to accompany ownership until the contrary is proved; and constructive

possession consequent upon legal ownership is sufficient as against trespassers. Long continued possession and use of real property creates a presumption of lawful origin, and this presumption need not rest upon belief that a conveyance was in point of fact executed.

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.

A servant in charge of his master’s goods does not have possession in law. Civil possession 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 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 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 may be enjoyed by the proprietor of the thing or by another for him; thus, the proprietor of a horse possesses it by his tenant or farmer.

Possession is lost with or without the consent of the possessor.


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, leaving him subject to an action for the mesne profits.

Possession of movable property is equivalent to title: When the possession is in good faith When the owner has voluntarily parted with the possession of the thing When the possession is in the concept of owner

If the owner has lost the thing, or he has been unlawfully deprived of it, he has a right to recover it, not only from the finder, thief or robber, but also from third persons who may have acquired it in good faith from such finder, thief or robber. The general rule of irreinvidicability, therefore, has 2 exceptions:1. When the owner has lost the thing2. When the owner has been unlawfully deprived thereof. In these cases, the possessor cannot retain the thing as against the owner who may recover it without paying any

indemnity, except when the possessor acquired it in a public sale. Public sale, which entitles the possessor in good faith to reimbursement, is one where there has been public notice of the

sale, in which anybody has a right to bid and offer to buy. [see U.S. v. Soriano, 12 Phil. 512] It is a general principle that no man can be divested of his property without his consent or voluntary act. To the foregoing

rule there seems to be 2 apparent exceptions:1. Where the owner has entrusted or delivered to an agent money or negotiable promissory notes have been

delivered or transferred to some innocent 3rd party. This exception is based on the exigencies of commerce. Money bears no earmarks of peculiar ownership. Its primary purpose is to pass from hand to hand as a medium of exchange, without other evidence of its title.

2. Doctrine of Estoppel. An illustration of this would be where a man voluntarily placed property in the possession of one whose ordinary business is to sell similar property as an agent for the owners. In such a case, it can be inferred that he intends the property to be sold. For example, where the owner sends his goods to an auction room, where the goods of a like kind are constantly being sold, he would be estopped from recovering them in case they are actually sold.

Article 546 Examples of necessary and useful expenses:

a. Necessary – repairs to avoid deterioration [see Angeles v. Lozada, 54 Phil. 184]b. Useful – house built on land; fishpond, and irrigation system [see Alfonso v. Villanueva 7 Phil. 277; Rivera v. Arch.

Of Manila, Valenzuela v. Lopez 51 Phil 279] Land taxes not necessary expenses; these are charges which shall be proportionately borne by the owner and

possessor based on the length of possession [see Art. 545]. Cultivation expenses are not necessary expenses because they refer only to preservation of the fruits and not of the

thing or property itself; they shall be refunded only on the basis that no person shall unjustly enrich himself at the expense of another.

Abandonment can hardly apply to land, as to which abandonment as a mode of acquisition is not available, let along to registered land [see Yu v. De Lara, L-16804 Nov. 30, 1962]

Article 559 Cruz v. Paliati, 52 O.G. 3253 U.S. v. Sotelo, 28 Phil. 147 People v. Alajano [or Elajano], 54 Phil. 987 See also Art. 1132 and 1505 of Civil Code

XXXII. Adverse Possession The enjoyment of land, or such estate as lies in grant, 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. 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 some actionable invasion of the real owner’s possession.

The statute of limitations protects the adverse possessor in his possession not out of regard to the merits of his title, but because the real owner has acquiesced in his possession.

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 proper title, but the latter may rest wholly in parol. The claim of right may be made inferentially by unequivocal acts of ownership, 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 cohere all the 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, and the possession is not adverse. 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; nor will the encroachment of one in the erection of his building on neighboring property through mistake constitute such a possession as will ripen into title by the lapse of time; nor where a deed, by mistake, covered land not intended to be conveyed. Lewis v. Railroad Co. 56 N.E. 540 Jasperson v. Scharvikow 150 Fed. 571 Probst v. Trustees 32 L. Ed. 642 Shirey v. Whitlow 97 S.W. 444 Kirkman v. Brown 27 S.W. 709 Preble v. Railroad Co 27 Atl. 149 Liddle v. Blake 105 N.W. 649 Davis v. Owen 58 S.E. 581 Garst v. Brutsche 105 N.W. 452 Barnes v. Light 22 N.E. 441 Cox v. Hotel Co. 47 S.W. 808 Dibble v. Land Co. 41 L. Ed. 72 Virginia Midland R. Co. v. Barbour 33 S.E. 554

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. [McCutchen v. McCutchen, 57 S.E. 678]

The adverse possession must be “actual, continued, visible, notorious, distinct and hostile”. It is founded in trespass and desseisin, an ouster and continued exclusion of the true owner for the period prescribed by the statute. [NOTE: DESSEISIN is the process of wrongfully or unlawfully dispossessing a person of his rightful real property; also see http://www.lectlaw.com/def/d181.htm] Evans v. Templeton 6 S.W. 843 Olewine v. Messmore 18 Atl. 495 Farmers’ & Merchants’ National Bank v. Wallace 12 N.E. 439 Todd v. Todd 7 N.E. 583 Lee v. Livingston 106 N.W. 713 Rodney v. McLaughlin 9 S.W. 726 Dobbins v. Dobbins 53 S.E. 870 Wright v. Kleyla 4 N.E. 16 Miller v. Miller 100 Am. Dec. 538 Mc Cann v. Welch 81 N.W. 996

One claiming by adverse possession cannot avail himself of the previous possession of another person with whose title he is in no way connected. [Helfin v. Burns, 8 S.W. 48]

There can be no adverse possession against the State, but a State may acquire a title by adverse possession. Hurst v. Dulany, 5 S.E. 802


http://www.lectlaw.com/def/d181.htm

Attorney General v. Ellis, 84 N.E. 430 There can be no adverse possession between husband and wife while the marital relation continues to exist.

Bell v. Bell, 79 Am. Dec. 73 Robinson v. Allison, 27 South 461

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. [Reynolds v. Summer, 18 N.E. 334]

The possession of the tenant becomes adverse where, to the knowledge of the landlord, the tenant disclaims the tenancy, and sets up title adverse to the landlord. Willison v. Watkins, 7 L. Ed 596 Walden v. Bodley, 10 L. Ed. 398 Tillotson v. Doe, 39 Am. Dec. 330

The title by adverse possession for such period as is required by statute to bar an action, is a fee-simple title, and is effective as any otherwise acquired. [Northern Pac. R. Co. v. Hasse, 49 L. Ed. 642]

When there has been a severance of the title to the surface and that to the minerals beneath it, adverse possession of the surface will not affect the title to the minerals. [Lulay v. Barnes, 34 Atl. 52]

It is not material that a break in the continuity of possession has been due to outside causes; in such a case, it was held that the running of the statute was suspended. [Western v. Flanagan, 25 S.W. 531]

LIMITATIONS Adverse possession of personal property gives title at the expiration of the statutory period after the possession

becomes adverse. But one who holds by consent of the true owner is not entitled to have the statute run in his favor until denial of the true owner’s claim. But different adverse possessions cannot be linked together to give title. The statute acts upon the title to property and when the bar is perfect, transfers it to the adverse possessor.

Adverse possession for the necessary statutory period gives title against the true owner; but is must be open, uninterrupted, and with intent to claim against the true owner. The possession must be an actual occupation, so open that the true owner ought to know it and must be presumed to know it, and in such manner and under such circumstances as amount to an invasion of his rights, thereby giving him cause of action.

The owner of land can only be barred by such possession as has been actual, continued, visible, notorious, distinct, and hostile or adverse.

A possession not actual, but constructive, not exclusive, but in participation with the owner or others falls short of that kind of adverse possession which deprives the true owner of his title.

As a rule, the nature of the acts necessary to constitute adverse possession varies with the region and character of the ground. If the latter is uncultivated and the region sparsely populated, much less unequivocal acts are necessary on the part of the adverse holder.

Evidence of adverse possession must be strictly construed and every presumption is in favor of the true owner. The claim by adverse possession must have some definite boundaries. There ought to be something to indicate to what

extent the adverse possessor claims. A sufficient enclosure will establish the limits, without actual continued residence on the land. But is must be an actual, visible and substantial enclosure. [And where the claim is by possession only, without any color or pretense of title, it cannot extend beyond the actual limits of the enclosure.]

If one by mistake encloses the land of another, and claims it as his own to certain fixed monuments or boundaries, his actual and uninterrupted possession as owner for the statutory period will work a disseisin, and his title will be perfect.

A trespasser who afterwards obtains color of title can claim constructively only from the time when the title was obtained.

Color of title exists wherever there is a reasonable doubt regarding the validity of an apparent title, whether such doubt arises from the circumstances under which the land is held, the identity of the land conveyed, or the construction of the instrument under which the party in possession claims title.

A fraudulent deed, if accepted in good faith, gives color of title; so does a defective deed; so does an improperly executed deed, if the grantor believes he has title thereby.

If there is no written title, then the possession must be under a bona fide claim to a title existing in another.

XXXIII. Other Notes Property of public dominion cannot be appropriated and alienated, because they are outside the commerce of men. These

cannot be subject to attachment and execution. Seashore lands are property of public dominion. Creeks are property of public dominion, they being mere arms extending

from a river. The government owns the accretions to the shores of the sea by action of the water.


Natural expropriation takes place when the private land adjoining the seashore is invaded by the sea and the owners allows it to be so invaded without taking the necessary steps. The private land in such instance becomes a part of property of public dominion.

The patrimonial property of the state is one owned by the latter as if it were owned by an individual so that the State has, over such property, the same rights and power subject to certain rules, as that of an individual over his own property.

Patrimonial property of the State is within the commerce of men. It may be acquired by prescription. Only property of public dominion, as declared in many cases, may not be appropriated or alienated and/or acquired by prescription. The patrimonial property of the State may be termed as “property privately owned by the State”.

Property of public dominion is converted into patrimonial property of the State by legislative enactment or declaration; it is up to the courts to determine whether there was proper conversion.

Catholic churches and consecrated objects do not belong to the State nor subject to private ownership by individuals. They are owned by the Roman Catholic Church as a juridical person.

Friar lands are patrimonial property of the State. There are certain cases where the fruits of the property will not belong to the owner of the land…

1. Possessor in good faith [Art. 544]2. Usufructuary [Art. 566]3. Antichresis [Art. 2132]

Basic principles/characteristics that underlie accession continua…1. Accessory follows the principal.2. The nature of the incorporation is in such a way that separation would injure or destroy either or both of the properties

incorporated.3. No punitive liability shall be suffered by the person who acts in good faith.4. The person who acts in bad faith is punished by, among others, requiring him to pay damages.

Art. 158 (CC): …shows an instance where the principal follows the accessory Art. 448 (CC): is not applicable in the following instances:

1. Co-ownership2. Usufruct3. Lease4. In case a person who owns a house and lot sells only the lot but not the house5. Constructions made during a war6. When the parties concerned agree on terms and conditions not contemplated by said article

Art. 324 (CC): … exclude; repel; reasonably necessary Art. 432 (CC): … interference (necessary)… danger Art. 433 (CC): …recovery…judicial process


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Property Notes