EASEMENT AGAINST NUISANCE

Category: Property, Ownership and Its Modifications

EASEMENT AGAINST NUISANCE

Art. 682. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.

REASON FOR PROHIBITING A NUISANCE

• A nuisance is that which, among others, annoys or offends the senses and it should therefore be prohibited
  

WHO IS THE SERVIENT IN AN EASEMENT AGAINST NUISANCE?

• The proprietor or possessor of the building or piece of land who commits the nuisance through noise, jarring, offensive odor, is servient in an easement against nuisance

WHO IS DOMINANT IN AN EASEMENT AGAINST NUISANCE?

• The general public or anyone injured by the nuisance

PERHAPS, NOT A TRUE EASEMENT

• While a true easement prohibits the owner from that which he could lawfully do were it not for the existence of the easement, a nuisance is something that is done or allowed unlawfully, whether or not a person has made a notarial prohibition

Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood.

LATERAL AND SUBJACENT SUPPORT

Sec. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support.

THE EASEMENT OF LATERAL AND SUBJACENT SUPPORT ISNT A TRUE EASEMENT

EXAMPLES
1. Of lateral support—while a person may excavate on his own land, he cannot do so if by such action, adjacent buildings would collapse or adjacent lands crumble
2. Of subjacent support—A owns a parcel of land with a house, but underneath the soil is being used by B in connection with a tunnel

LATERAL DISTINGUISHED FROM SUBJACENT

The support is lateral when both the land being supported and the supporting land are on the same plane, when the supported is above the supporting land, the support is subjacent

Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void.

RULE ON DANGEROUS EXCAVATIONS

A person is protected even against his own folly, in the interest of public safety

Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made
but also for constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands.

NOTIFICATION RE INTENDED EXCAVATIONS

1. Notice isn’t required if there is actual knowledge of the excavation. Otherwise, notice is mandatory.
2. Even if there be notice, the excavation should deprive the other owners of lateral or subjacent support. This is true even if the others consent or even if the excavation is carried out skillfully.
3. Notice is required to enable adjoining owners to take proper precautions.