Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. (Civil Code)


What is avulsion?

Avulsion is the process whereby the current of a river, creek, torrent or lake segregates from an estate on its bank a known portion of land and transfers it to another estate.

It is also called the "force of the river", since avulsion implies a violent tearing or breaking away.

It may also be referred to as "delayed accession" in the sense that if the owner abandons the soil involved, or fails to remove the same within two years, the land to which it has been attached acquires ownership thereof.


What are the requisites of avulsion?

  1. Transfer is caused by the current of a river, creek, or torrent;
  2. Transfer is sudden or abrupt; and,
  3. The portion of the land transported is known or identifiable.

What is the rule with regard to avulsion?

General rule: owner of the land to which the segregated portion belonged retains the ownership provided that he removes the same within two years.

Exception: If the owner fails to remove within 2 years, the segregated portion shall belong to the owner of the land to which it has been attached.


Define river, creek, torrent.

River - is a natural stream of water, of greater volume than a creek or rivulet, flowing in a more or less permanent bed or channel, between defined banks or walls, with a current which may either be continuous in one direction or affected by the ebb and flow of the tide. (Black's Law Dictionary)

Creek - is a small stream less than a river.

Torrent - is a violent, rushing, or turbulent stream. (Webster)


Distinguish between alluvion and avulsion.

 The two may be distinguished from each other in the following ways:

  1. In alluvion, the accretion is gradual, whereas in avulsion, it is sudden and abrupt;
  2. In alluvion, the accretion cannot be identified, whereas in avulsion, it can be identified;
  3. In alluvion, there is merely an attachment, whereas in avulsion, there is first a detachment followed by attachment; and,
  4. In alluvion, the accretion belongs to the owner of the land to which the attachment is made ipso jure, whereas in avulsion, the ownership is retained by the owner of the land from which it is detached, at least, for a certain period. 


For many years, the Rio Grande river deposited soil along its bank, beside the titled land of Jose. In time, such deposit reached an area of one thousand square meters. With the permission of Jose, Vicente cultivated the said area. Ten years later, a big flood occurred in the river and transferred the 1000 square meters to the opposite bank, beside the land of Agustin. The land transferred is now contested by Jose and Agustin as riparian owners and by Vicente who claims ownership by prescription. Who should prevail? Why? (Bar 2001) 

Jose should prevail. The disputed area, which is an alluvion, belongs by right of accretion to Jose, the riparian owner (Art. 457 CC). When, as given in the problem, the very same area" was "transferred" by flood waters to the opposite bank, it became an avulsion and ownership thereof is retained by Jose who has two years to remove it (Art. 459, CC). Vicente's claim based on prescription is baseless since his possession was by mere tolerance of Jose and, therefore, did not adversely affect Jose's possession and ownership (Art. 537, CC). Inasmuch as his possession is merely that of a holder, he cannot acquire the disputed area by prescription


References:
Edgardo L. Paras, Civil Code of the Philippines Annotated, Book II, Property
Desiderio P. Jurado, Civil Law Reviewer