easement as this might just be a result of a mere tolerance on the part of the
MAXIMO CORTES
vs.
JOSE PALANCA YU-TIBO
Facts: The case was brought for the purpose of restraining the continuation of
certain buildings commenced by the defendant. The wife of the plaintiff owns
house No. 65 in Calle Rosario. House No 65. Has windows which receives
light and air from the adjacent house, which is house No 63 of the same street.
Plaintiff contends that these windows have been in existence since 1843. The
defendant, tenant of house No 63 has commenced works that raised the roof
of house No 63 which covered house No 65, depriving house No 65 of air and
light formerly received through the window.
The contention of the plaintiff is that by the constant and uninterrupted
use of the windows referred to above during a period of fifty-nine years he
acquired from prescription an easement of light in favor of the house No. 65,
and as a servitude upon house No. 63, and, consequently, has acquired the
right to restrain the making of any improvements in the latter house which
might in any manner be prejudicial to the enjoyment of the said easement. He
contends that the easement of light is positive; and that therefore the period of
possession for the purposes of the acquisition of a prescriptive title is to begin
from the date on which the enjoyment of the same commenced.
The defendant, on the contrary, contends that the easement is
negative, and that therefore the time for the prescriptive acquisition thereof
must begin from the date on which the owner of the dominant estate may have
prohibited, by a formal act, the owner of the servient estate from doing
something which would be lawful but for the existence of the easement.
The court below in its decision held in the easement of light is negative, and
this ruling has been assigned by the plaintiff as error to be corrected by this
court.
Issue: Was the easement positive or negative? When did the prescriptive
period start to run?
Held: Ruling 1 - The Court clarified that mere act of opening one owns
window is an act of dominion not of easement. The easement here is the
(possible) prohibition of creating any improvements on the property of the
defendants (negative easement) that may impede or limit the use of the
window. Thus, plaintiff is totally wrong in saying that prescription for the
easement starts to kick in when the window was made and acknowledge by
the adjacent owner. In fact, what is needed in this situation is a formal act
through a notarial prohibition so that prescriptive period will start. The fact that
the defendant has not covered the windows of the apellant/ plaintiff does not
necessarily imply the recognition of the acquisitive prescription of the alleged
defendant.
Plaintiffs asked for a rehearing but was again denied! Plaintiff mentions about
their windows and watersheds to be apparent easements, or just projitiendi
and jus spillitiendi. The court says that the plaintiffs are obviously confused
between the right exercised by owners and the rights provided in easements.
Ruling 2 - GENERAL RULE: No part owner can, without the consent of the
other, make in a party wall a window or opening of any kind (Art. 580)
The very fact of making such opening in such a wall may be the basis for
acquisition of a prescriptive title without the necessity of any active opposition
because it always presupposes the express or implied consent of the owner
of the wall, which in time, implies a voluntary waiver of the right to oppose.
EXCEPTION: When the windows are not opened on the neighbor's side, there
is need of a prohibition from exercising that neighbor's right to build on his land
or cover the closed window on the party wall.
The period of prescription starts to run from such prohibition if the neighbor
consents to it.
Note: The law refers to all kinds of windows, even regulation windows.
According to article 528, windows with "similar projections" include sheds.
The exception applies in this case because
1) what is concerned is a party wall;
2) there was no prohibition on Yu-Tibo to build anything that would cover the
Cortes' window (Yu-Tibo wanted to raise his roof which would in effect cover
1/2 of the window).
Overall, 1. That the easement of light which is the object of this litigation is of a negative
character, and therefore pertains to the class which can not be acquired by prescription as
provided by article 538 of the Civil Code, except by counting the time of possession from the
date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of
the servient estate to do an act which would be lawful were it not for the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to
the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to
make therein improvements which might obstruct the light of the house No. 65 of the same
street, the property of the wife of the appellant, at any time prior to the complaint, as found by
the court below in the judgment assigned as error, he has not acquired, nor could he acquire by
prescription, such easement of light, no matter how long a time have elapsed since the windows
were opened in the wall of the said house No. 65, because the period which the law demands
for such prescriptive acquisition could not have commenced to run, the act with which it must
necessarily commence not having been performed.