easement cases for reading

LAUREANA A. CID, petitioner,vs IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER, FERNANDO P. JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN P. JAVIER, and LEONOR CRISOLOGO, respondents.G.R. No. L-14116 June 30, 1960

Antonio V. Raquiza for petitioner.
Cesar D. Javier for respondents.

BARRERA, J.:

The legal issue presented in this petition to review by certiorari a decision of the Court of appeals, is whether the respondents Irene P. Javier, et al., owners of a building standing on their lot with windows overlooking the adjacent lot, had acquired by prescription an enforceable easement of light and view arising from a verbal prohibition to obstruct such view and light, alleged to have been made upon petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots being covered by Torrens titles. Both the trial court and the Court of Appeals are of the view and so declared that respondents Javier et al., did acquire such easement and gave judgment accordingly. Hence, petitioner has come to us seeking review, alleging that both courts are in error.

The windows in question are admittedly in respondents' own building erected on their own lot. The easement, if there is any, is therefore a negative one.¹ The alleged prohibition having been avowedly made in 1913 or 1914, before the present Civil Code took effect, the applicable legal provision is Article 538 of the Spanish Civil Code which provides:

Art. 538. In order to acquire by prescription the easements referred to in the next preceding article, the time of the possession shall be computed, ... in negative easements, from the day on which the owner of the dominant estate has, by a formal act, forbidden the owner of the servient estate to perform any act which would be lawful without the easement.

As may be seen, the only question hinges on the interpretation of the phrase "a formal act". The lower court and the Court of Appeals considered any prohibition made by the owner of the dominant estate, be it oral or written, sufficient compliance with the law. The Court of Appeals declared:

In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and the decisions of the Supreme Court of Spain therein cited), we agree with the trial court that the "formal act" of prohibition contemplated by Art. 538 of the old Civil Code may be either a written or verbal act. The decisions of the Supreme Court of Spain above-quoted do not at all mention written but merely some act of prohibition. . . . .

We are inclined to take the contrary view. The law is explicit. It requires not any form of prohibition, but exacts, in a parenthetical expression, for emphasis, the doing not only of a specific, particular act, but a formal act. The following definitions are pertinent:

Formal—or pertaining to form, characterized by one due form or order, done in due form with a solemnity regular; relating to matters of form. (C. J. S. vol. 37, p. 115.)

Act—In civil law, a writing which states in legal form that a thing has been done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing Marlin Report.)

From these definitions, it would appear that the phrase "formal act" would require not merely any writing, but one executed in due form and/or with solemnity. That this is the intendment of the law although not expressed in exact language is the reason for the clarification² made in Article 621 of the new Civil Code which specifically requires the prohibition to be in "an instrument acknowledged before a notary public". This is as it should be. Easements are in the nature of an encumbrance on the servient estate. They constitute a limitation of the dominical right of the owner of the subjected property. Hence, they can be acquired only by title and by prescription, in the case of positive easement, only as a result of some sort of invasion, apparent and continuous, of the servient estate. By the same token, negative easements can not be acquired by less formal means. Hence, the requirement that the prohibition (the equivalent of the act of invasion) should be by "a formal act", "an instrument acknowledged before a notary public."

The Court of Appeals found as undisputed the fact 'that plaintiffs' lot (dominant) as well as defendant's lot (servient) are covered by Original Certificates of Title Nos. 7225 and 7545, respectively", both issued by the Register of Deeds of Ilocos Norte, in pursuance of the decrees of registration issued on December 27, 1937, in Cadastral Case No. 51, G.L.R.O. Cadastral Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these certificates of title are found as Annexes "A" and "B", pages 77 to 80 inclusive of the Record on Appeal. In both of them, it does not appear any annotation in respect to the easement supposedly acquired by prescription which, counting the twenty (20) years from 1913 or 1914, would have already ripened by 1937, date of the decrees of registration. Consequently, even conceding arguendo that such an easement has been acquired, it had been cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Section 39 of the Land Registration Act.³

Wherefore, the decision of the Court of Appeals appealed from is hereby reversed; the injunction issued herein dissolved; and the case remanded to the court of origin for adjudication of the damages, if any, occasioned by the issuance of the injunction. Without pronouncement as to costs. So ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Gutierrez David, JJ., concur.

R E S O L U T I O N

January 20, 1961

BARRERA, J.:

The Decision in this case, promulgated on June 30, 1960, provided, among others, for the lifting of the preliminary injunction issued by the lower court directed against petitioner's construction of a building allegedly being made in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of Laoag, and in disregard of respondents' right to light and view.

In their motion for reconsideration timely presented, respondents claim that the findings of the lower court, affirmed by the Court of Appeals, that the building under construction violated the aforementioned ordinance (from which no appeal was interposed) having become final, justify the issuance of and making permanent the injunction already issued.

There is no question that respondents' house, as well as that of petitioner, are within their respective properties; that respondents' wall stands only 50 centimeters from the boundary of the 2 lots, whereas, the wall of the petitioner's building was constructed 1 meter from the boundary or 1 meter and 50 centimeters from the wall of the house of respondents. As a result, the lower court found that the eaves of the two houses overlap each other by 24 centimeters. This, the Court of Appeals declared to be violative of Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters, measured from eaves to eaves of adjoining buildings of strong materials.

It must be noted, however, that the Ordinance in question was adopted since 1909 and was, therefore, already in force at the time the house of respondents was reconstructed in 1946 after the building originally erected thereon was burned in 1942. If respondents constructed their house at least one meter from the boundary line, as petitioner has constructed hers, there would be no overlapping of the eaves and there would not be any violation of the ordinance. As things now stand, in view of such construction by the respondents, the overlapping of the eaves and the consequential violation of the ordinance can not entirely be attributed to petitioner, as to require her alone to make the adjustments necessary for the observance of the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the ordinance would be made not only by petitioner, but also by the respondents. There is, therefore, no reason for the continuation of the injunction.

In view of the foregoing, and as the other grounds respondents' motion for reconsideration had been already duly considered in the Decision, the said motion is hereby denied, for lack of merit. So ordered.

Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Gutierrez David, Paredes, and Dizon, JJ., concur.

Footnotes

¹ Cortes vs. Yu-Tibo, 2 Phil., 24; Fabie vs. Lichauco, 11 Phil., 14.

² The Court of Appeals admits that Article 621 of the new Civil Code merely clarified "the formal act" provision of Article 536 of the Spanish Civil Code. See also II Padilla's Civil Code Annotated, 1956 Edition, p.296.

³ In relation to Section 11 of the Cadastral Law (Act No. 2259).

G.R. No. L-48384 October 11, 1943

SEVERO AMOR, petitioner,
vs.
GABRIEL FLORENTINO, ET AL., respondents.

BOCOBO, J.:

The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed the judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an easement of light and view had been established in favor of the property of the plaintiffs (respondents herein) and ordered the petitioner to remove within 30 days all obstruction to the windows of respondents' house, to abstain from constructing within three meters from the boundary line, and to pay P200.00 damages.

It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper story, and a fourth one on the ground floor. Through these windows the house receives light and air from the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will, devising the house and the land on which it is situated to Gabriel Florentino, one of the respondents herein, and to Jose Florentino, father of the other respondents. In said will, the testatrix also devised the warehouse and the lot where it is situated to Maria Encarnancion Florentino. Upon the death of the testatrix in 1882, nothing was said or done by the devisees in regard to the windows in question. On July 14, 1911, Maria Encarnacion Florentino sold her lot and the warehouse thereon to the petitioner, Severo Amor, the deed of sale stating that the vendor had inherited the property from her aunt, Maria Florentino. In January, 1938, petitioner destroyed the old warehouse and started to build instead a two-story house. On March 1st of that year, respondents filed an action to prohibit petitioner herein from building higher than the original structure and from executing any work which would shut off the light and air that had for many years been received through the four windows referred to. The Court of First Instance found on the 15th of the same month that the construction of the new house had almost been completed, so the court denied the writ of preliminary injunction.

I.

Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of Appeals, Articles 541 of the Civil Code governs this case. The facts above recited created the very situation provided for in said article, which reads as follows:

(Spanish - page 406)

Art. 551. La existencia de un signo aparente de servidumbre entre dos fincas, establecido por el propietario de ambas, se considerara, si se enjenare una, como titulo para que la servidumbre continue activa y pasivamente, a no ser que, al tiempo de separarse la propiedad de las dos fincas, se exprese lo contrario en el titulo de enajenacion de cualquiera de ellas, o se haga desaparecer acquel signo antes del otorgamiento de la escritura.

Art. 541. The existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of the two estates is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed.

When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot passed to respondents while the dominion over the camarin and its lot was vested in Maria Encarnancion Florentino, from whom said property was later bought by petitioner. At the time the devisees took possession of their respective portions of the inheritance, neither the respondents nor Maria Encarnacion Florentino said or did anything with respect to the four windows of the respondents' house. The respondents did not renounce the use of the windows, either by stipulation or by actually closing them permanently. On the contrary, they exercised the right of receiving light and air through those windows. Neither did the petitioner's predecessor in interest, Maria Encarnacion Florentino, object to them or demand that they be close. The easement was therefore created from the time of the death of the original owner of both estates, so when petitioner bought the land and the camarin thereon from Maria Encarnancion Florentino, the burden of this easement continued on the real property so acquired because according to Article 534, "easements are inseparable from the estate to which they actively or passively pertain."

An incidental question that arises at this juncture is whether or not Article 541 applies to a division of property by succession. The affirmative has been authoritatively declared. (Manresa, "Comentarios al Codigo Civil Espanol," vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain, November 17, 1911).

Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code. However, the petitioner's contention cannot be upheld without rejecting the finding of fact made by the Court of Appeals, as follows:

Hebiendo pasado la propiedad de la casa de manposteria a los demandantes, a la muerte de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con anterioridad a 1889) no hay duda ninguna de que los demandantes adquirieron la servidumbre mediante titulo y por prescripcion (Art. 537).

We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in 1892. The evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio Florentino during the trial in 1938 testified to facts of his own personal knowledge, and he was then 58 years old, having been born in 1880. If Maria Florentino, as claimed by petitioner, had died in 1885, Gregorio Florentino would have been only 5 years of age at the time of Maria Florentino's death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when Gregorio Florentino was ten 12 years of age. We do not believe we can disturb the finding of the Court of Appeals, because its deductions as to the date of Maria Florentino's death may be right or wrong, according to one's own reasoning. In other words, its conclusion of fact from Gregorio Florentino's testimony is not necessarily and unavoidably mistaken. On the contrary, it is reasonable to believe that a person 58 years old cannot remember facts of inheritance as far back as when he was only 5 years of age.

Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively, were offered by petitioner in a motion for new trial filed in the Court of Appeals, could have been discovered by petitioner before the trial in the Court of First Instance by the exercise of due diligence. There is no reason why this evidence could be found when the case was already before the Court of Appeals, but could not be found before the trial in the Court of First Instance. It was easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when she died. And having ascertained the date, it was also easy to secure the burial certificate and a photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is, petitioner never tried to find out such date and never tried to secure the additional evidence till his counsel raised this issue for the first time before the Court of Appeals. That Court was therefore died in 1885. (Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the Court of Appeals neither passed upon his motion nor took the burial certificate and the gravestone into account is not true, because the very words of the Court of Appeals clearly show that the Court had in mind said motion and evidence when the decision was signed. The decision said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue con anteriodad a 1889)" (Emphasis supplied).

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for the first time in the Court of Appeals. (Sec. 497, Act. 190).

Let us now consider Article 541 more closely in its application to the easement of light and view and to the easement not to build higher (altius non tollendi). These two easements necessarily go together because an easement of light and view requires that the owner of the servient estate shall not build to a height that will obstruct the window. They are, as it were, the two sides of the same coin. While an easement of light and view is positive, that of altius non tollendi is negative. Clemente de Diego states that when article 538 speaks of the time for the commencement of prescription for negative easements, "it refers to those negative easements which are the result and consequence of others that are positive, such as the easement not to build higher, or not to construct, which is indispensable to the easement of light." (Se refiere a aquellas servidumbres negativas que son sucuela y consecuencia de otras positivaas, como la de no levantar mas alto, o de no edificar, que es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Españos, Comun y Foral," vol. 3, p. 450). This relation of these two easements should be borned in mind in connection with the following discussion of (1) the modes of establishing and acquiring easements; (2) the meaning of article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.

First, as to the modes of establishing and acquiring easements. According to Article 536, easements are established by law or by will of th owners. Acquisition of easements is first by title or its equivalent and seconly by prescription. What acts take the place of title? They are mentioned in Articles 540 and 541, namely, (1) a deed of recognition by the owner of the servient estate; (2) a final judgment; and (3) an apparent sign between two estates, established by the owner of both, which is the case of article 541. Sanchez Roman calls cuh apparent sign under article 541 "supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The same jurist says in regard to the ways of constituting easements:

(Spanish word - page 410)

In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that under article 541 of the Civil Code, the visible and permanent sign of an easement "is the title that characterizes its existence" ("es el titulo caracteristico de su existencia.")

It will thus be seen that under article 541 the existence of the apparent sign in the instance case, to wit, the four windows under consideration, had for all legal purposes the same character and effect as a title of acquisition of the easement of light and view by the respondents upon the death of the original owner, Maria Florentino. Upon the establishment of that easement of light and view, the con-comitant and concurrent easement of altius non tollendi was also constituted, the heir of the camarin and its lot, Maria Encarnacion Florention, not having objected to the existence of the windows. The theory of article 541, of making the existence of the apparent sign equivalent to a title, when nothing to the contrary is said or done by the two owners, is sound and correct, because as it happens in this case, there is an implied contract between them that the easements in question should be constituted.

Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the easement should continue. Sound juridical thinking rejects such an idea because, properly speaking, the easement is not created till the division of the property, inasmuch as a predial or real easement is one of the rights in another's property, or jura in re aliena and nobdy can have an easement over his own property, nimini sua res servit. In the instant case, therefore, when the original owner, Maria Florentino, opened the windows which received light and air from another lot belonging to her, she was merely exercising her right of dominion. Consequently, the moment of the constitution of the easement of light and view, together with that of altius non tollendi, as the time of the death of the original owner of both properties. At that point, the requisite that there must be two proprietors — one of the dominant estate and another of the servient estate — was fulfilled. (Article 530, Civil Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a highly interesting theory, whether one may agree with it or not. He says:

La servidumbre encubierta, digamoslo asi, por la unidad de dueño, se hace ostensible, se revela con toda su verdadera importancia al separarse la propiedad de las fincas o porciones de finca que respectivamente deben representar el papel de predios sirviente y dominante.

The concealed easement, as it were by the oneness of the owner, becomes visible, and is revealed in all its importance when the ownership of the estate or portions of the estate which respectively should play the role of servient and dominant estates is divided.

Such a view cannot be fully accepted because before the division of the estate there is only a service in fact but not an easement in the strictly juridical sense between the two buildings or parcels of land.

We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later Chief Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in that case is controlling in the present one. If the essential facts of the two cases were the same, there is not doubt but that the early opinion would be decisive inasmuch as it is by its cogent reasoning one of the landmarks in Philippine jurisprudence. However, the facts and theories of both cases are fundamentally dissimilar. What is more, as will presently be explained, that every decision makes a distinction between that case and the situation provided for in article 541. In that case, Cortes sought an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes' wife owned a house in Manila which had windows that had been in existence since 1843. The defendant, who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a manner that one-half of the windows in the house owned by plaintiff's wife had been covered. This Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held that the opening of windows through one's own wall does not in itself create an easement, because it is merely tolerated by the owner of the adjoining lot, who may freely build upon his land to the extent of covering the windows, under article 581, and that his kind of easement is negative which can be acquired through prescription by counting the time from the date when the owner of the dominant estate in a formal manner forbids the owner of the servient estate from obstructing the light, which had not been done by the plaintiff in this case.

It will thus be clear that one of the essential differences between that case and the present is that while the Yu-Tibo case involved acquisition of easement by prescription, in the present action the question is the acquisition of easement by title, or its equivalent, under article 541. Therefore, while a formal prohibition was necessary in the former case in order to start the period of prescription, no such act is necessary here because the existence of the apparent sign when Maria Florentino died was sufficient title in itself to created the easement.

Another difference is that while in the Yu-Tibo case, there were tow different owners of two separate houses from the beginning, in the present case there was only one original owner of the two structures. Each proprietor in the Yu-Tibo case was merely exercising his rights of dominion, while in the instant case, the existence of the apparent sign upon the death of the original owner ipso facto burdened the land belonging to petitioner's predecessor in interest, with the easements of light and view and altius non tollendi in virtue of article 541.

The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in article 541. Said this Court in that case:

It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986, has classified as positive easements of light which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance, that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property noting was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such deed.'

The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presuposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular cases passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a tenement among various persons — in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed — such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non tollendi, while the instant case is predicated on the idea of the positive easement of light and view under article 541. On this point, suffice it to quote from Manresa's work. He says:

Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi como al efecto de la precripcion ha de considerarse prefente el aspecto negativo, al efecto del art. 541 basta atender al aspecto positivo, y asi la exitencia de huecos o ventanas entre dos fincas que fueron de un mismo dueño es bastante para considerar establecidas, al separarse la propiedad de esas fincas, las servidumbres de luces o vista, y con ellas las de no edificar on no levantar mas ato, porque sin estas no prodrian existir aquellas.

That in easements whose positive aspect appears tied up with the negative aspect, just as for the purposes of prescription the negative aspect has to be considered preferential, so for the purposes of Article 541 it is sufficient to view the positive aspect, and therefore the existence of openings or windows between two estates which belonged to the same owner is sufficient to establish, when the ownership of these estates is divided, the easement of light or view, and with them the easements of altius non tollendi because without the latter, the former cannot exists.

There are several decisions of the Supreme Court of Spain which have applied Article 541. Some of them are those of February 7, 1986; February 6, 1904; May 29, 1911; and November 17, 1911.

The sentence of February 7, 1896, dealt with windows established in one house by the original of two houses. When he died, the two houses were adjudicated to different heirs. The court held that there was an easement of light.

Considerando que, segun lo establecido por este Supremo Tribunal en repetidas sentencias, y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892, lo preceptuado en la ley 14, titulo 31 de la Partida 3.a, al tratar del mode de constituirse las servidumbres, no esta en oposicion con el pricipio mediante el que, dividida una finca entre diversas personas, sin que en el contrato se mencione cosa alguna acerca de un modo de aprovenchamiento distinto del que usaba el primitivo dueño de ella, se entieden subsistentes las servidumbres ncesarias para que aquel pueda tener lugar.

Considerando que ese principio y jurisprudencia han obtenido nueva sancion, puesto que a ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil, aplicable al caso, . . . (Ruiz, Codigo Civil, Vol. V, pp. 349-350).

Considering that, according to what has been established by this Supreme Tribunal in repeated sentences, and principally declared in the sentence promulgated on October 21, 1892, the provision of law 14, title 31 of Partida 3 in treating of the mode of constituting easements, is not contrary to the principle that when an estate is divided between different persons, and in the contract nothing is said out a mode of enjoyment different from that used by the original owner thereof, the necessary easements for said mode of enjoyment are understood to be subsisting;

Considering that such principle and jurisprudence have obtained a new santion, for due to them is the clear and concrete concept of Article 541 applicable to the case . . . .

Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the Court of Appeals, there is an easement of light and view in favor of the respondents' property under article 541 of the Civil Code.

But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner, nevertheless the same principle enunciated in article 541 of the Spanish Civil Code was already an integral part of the Spanish law prior to the Civil Code, the easement in question would also have to be upheld. That the law before the Civil Code was the same as at present is shown by the following:

1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract among the heirs of Maria Florentino.

2. Granting for the sake of argument that this easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not inconsistent with the principle in question, so that there was a gap in the Partidas which the Supreme Court of Spain filled up from the Roman Law and modern civil codes, by recognizing the existence of this kind of easement.

3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit the easement in the instant case, Therefore, we should adhere to the decisions of the Supreme Court of Spain which maintain this easement under the Spanish law prior to Civil Code.

4. Other considerations show that the principle of apparent sign as announced by the Supreme Tribunal of Spain is not incompatible with the Partidas.

First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired by contract, by will and by prescription. Upon the death of the original owner, Maria Florentino, the four windows under consideration already existed and were visible. One of the heirs, Maria Encarnacion Florentino, to whom the camarin and its lot had been devised, having failed to object to the same, knowingly consented to their continuance. Nor did Gabriel and Jose Florentino (devisees of the house that had the four windows) permanently close the windows. There was consequently an implied agreement between her and the devisees of the house with the four windows to the effect that the service of these windows would continue, thus creating the easement of light and view and the concomitant easement of altius non tollendi. Hence, the easement in question was acquired by Gabriel and Jose Florentino through contract under Law 14, Title 31, Partida 3.

Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under review. One of those decisions is that of November 7, 1883, which held:

(Spanish word - page 418)

Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14, 1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)

So that, granting for the sake of argument, that the easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to decisions of the Supreme Tribunal of Spain, was not inconsistent with the principle in question. The problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap in the old legislation, which the Supreme Tribunal of Spain filled up from the Roman Law and from modern Civil Codes.

The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that the Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided for by the Partidas, whose main source was also the Roman law. In other words, the Partidas being silent on the point under consideration, the Supreme Tribunal of Spain resorted to the authoritative voice of the Roman law from which the Law of the Partidas had derived its inspiration.

The following quotations from the Spanish version the Roman Law Digest will prove the assertions just made:

(Spanish word - page 419)

Among the modern civil codes which contain the rule in question are those of France, Belgium, Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in mind at least one of them when it decided cases involving this principle before the promulgation of the Spanish Civil Code.

When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish law was in favor of the doctrine in question. We cannot change it because it was in full force at the time of the alleged date of Maria Florentino's death. We cannot reject a doctrine established by the Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil Code in 1889. And we know that jurisprudence — in the sense of court decisions — is one of the sources of the law.

Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of the opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que podia deducirse claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful reading of this provision of the Partidas reveals that the same did not militate against the creation of an easement by an apparent sign if nothing was said or done when the property is divided. Law 17, Title 31, Partida 3, read as follows:

(spanish word - page 420-21)

This law regulates the extinguishment of an easement by merger of the dominant and the servient estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of which refer to merger of the two estates, Acaevola says: (p. 319, vol. 10)

But there is a world of difference between extinguishment of an easement by merger of the two estates and the constitution of an easement by an apparent sign when nothing is done or said upon the division of the property. Law 17, title 31, Partida 3, having in mind only the modes of extinguishment, the legislator did not intend to cover the question involved in the present case, which refers to the creation of an easement.

What, then, are the differences between the extinguishment of an easement by merger under Law 17, title 31, Partida 3, and the constitution of an easement in this case, both before and after the Civil Code went into effect?

First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already two separate estates, the dominant and the servient estates, whereas in this case, there was only one estate.

Second, in merger under said Law 17, there were already two owners, whereas in this case, there was only one owner, Maria Florentino.

Third, in merger under Law 17, there was already an easement in the legal sense, whereas in the instant case, there was only a service between the two lots, (while Maria Florentino was living) but there was as yet no easement from the juridical viewpoint.

4. Other considerations prove that the principle of apparent sign as enunciated by the Supreme Tribunal of Spain is not inconsistent with the Partidas. These considerations are:

1. Article 537, Civil Code, provides that continuous and apparent easements are acquired by title, or by prescription. However, side by side with that article is article 541 which contemplates an easement upon division of an estate, unless a stipulation to the contrary is agreed upon, or the sign is destroyed. Bearing in mind that "title" includes a contract, our view is that if Article 537 and 541 of the Civil Code can stand together, there is no reason why Law 14, title 31, Partida 3, whereby easements are acquired by contract, by will and by prescription should be considered incompatible with the easement under review.

2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the same owner an easement is extinguished. Yet, coexistent with such provision is that of article 541 regarding the apparent sign which is a title for the easement. If these two principles can and do stand together under the Civil Code, the doctrine laid down by the Supreme Tribunal of Spain — before the Civil Code was in force — about the effect of an apparent sign can also stand together with Law 17, title 31, Partida 3 declaring the extinguishment of an easement by merger.

3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in case the estate is again divided by purchase, etc., the easement is not, under the Civil Code automatically revived. That is the same provision of law 17, title 31, Partida 3, which does not reject the principle in question, just as article 546, par. 1 of the Civil Code does not reject article 541 about an apparent sign.

III.

Aside from the foregoing reasons that support the easement under consideration, the same has been acquired by respondents through prescriptions.

The easement involved in this case is of two aspects: light and view and altius non tollendi. These two aspects necessarily go together because an easement of light and view prevents the owner of the sevient estate from building to a height that will obstruct the windows. This court in Cortes vs. Yu-Tibo, supra, held that the easement concerned when there is an apparent sign established by the owner of two estates is positive. Manresa is of the same opinion, supra. This being so, and inasmuch as the original heirs of Maria Florentino succeeded to these two estates either in 1885 or in 1892 and as petitioner bought one of the lots in 1911, the prescriptive period under any legislation that may be applied — the Partidas, Civil Code or Code of Civil Procedure — has elapsed without the necessity of formal prohibition on the owner of the servient estate. The respondent's action was brought in 1938. The persons who were present, and 20 years between absentees. (4 Manresa, 605). According to article 537 of the Civil Code, continous and apparent easements may be acquired by prescription for 20 years. Under sections 40 and 41 of the Code of Civil Procedure, the period is 10 years.

IV.

The petitioner maintains that he is an innocent purchaser for value of the lot and camarin thereon, and that he was not bound to know the existence of the easement because the mere opening of windows on one's own wall does not ipso facto create an easement of light. Such contention might perhaps be in point if the estates had not originally belonged to the same owner, who opened the windows. But the petitioner was in duty bound to inquire into the significance of the windows, particularly because in the deed of sale, it was stated that the seller had inherited the property from her aunt, Maria Florentino. Referring to the Sentence of the Supreme Court of Spain dated February 7, 1896, which applied Article 541, this Court in the case of Cortes vs. Yu-Tibo already cited, said that the establishment of the easement "was an act which was in fact respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but on the contrary acquiesced in the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but on the contrary, acquiesced in the continuance of the apparent sign thereof." (p. 31). Moreover, it has been held that purchasers of lands burdened with apparent easements do not enjoy the rights of third persons who acquire property, though the burden it not recorded. (Sentence of the Supreme Tribunal of Spain, April 5, 1898).

V.

Let us now discuss the case from the standpoint of justice and public policy.

First. — When Maria Encarnacion Florentino, as one of the devisees, accepted the camarin and the lot, she could not in fairness receive the benefit without assuming the burden of the legacy. That burden consisted of the service in fact during the lifetime of the original owner, which service became a true easement upon her death.

Second. — According to Scaevola, the reason for the principle in question is that there is a tacit contract. He says in vol. 10, p. 277:

(spanish word - page 424)

Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del enajenante, o sea del dueño de las fincas que estuvieren confundidas, sino convencion, siquiera sea tacita, entre el vendedor y al adquirente de la finca vendida. Puesto que pudiendo estipular la no existencia de la servidumbre, nada dicen o nada hacen, fuerza es presumir que el segundo (comprador) acepta el estado jurisdico creado por el primero (vendedor).

It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her own undertaking, implied, it is true, but binding nevertheless. This easement is therefore a burden which Maria Encarnacion Florentino and her successor in interest willingly accepted. They cannot now murmur against any inconvenience consequent upon their own agreement.

Third. During the construction of the new house by the petitioner, the respondents filed an action to stop the work. But petitioner continued the construction, so that when the Court of First Instance was ready to pass upon the preliminary injunction, the work had almost been finished. Petitioner, therefore, cannot complain if he is now ordered to tear down part of the new structure so as not to shut off the light from respondents' windows.

Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino, the windows on respondents' house were visible. It was petitioner's duty to inquire into the significance of those windows. Having failed to do so, he cannot now question the easement against the property which he purchased.

(spanish word - page 425)

This idea of easements can never become obsolete in the face of modern progress. On the contrary, its need is all the more pressing and evident, considering that this mutual assistance and giving way among estates is demanded by the complexities of modern conditions, such as those which obtain in large cities where buildings, large and small, are so close together.

VI.

Recapitulating, we believe the easement of light and view has been established in favor of the property of respondents, for these reasons:

1. Maria Florentino having died in 1892, according to a finding of fact of the Court of Appeals, which we cannot review, Article 541 of the Civil Code is applicable to this case.

2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that same principle embodied in article 541 of the Civil Code was already an integral part of the Spanish law before the promulgation of the Civil Code in 1889, and therefore, even if the instant case should be governed by the Spanish law prior to the Civil Code, the easement in question would also have to be upheld.

3. The easement under review has been acquired by respondents through prescription.

4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into the significance of the windows.

5. Justice and public policy are on the side of the respondents.

Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against the petitioner. So ordered.

Yulo, C. J., Moran Imperial, ¹ and Havtiveras, 1 JJ., concur.

Separate Opinions

OZAETA, J., dissenting:

I regret to say that the omnibus opinion of the majority is a straddle over the baseless finding that Maria Florentino died in 1892 and the assumption that she died in 1885. Since she could not have died twice — and the date of her demise was properly raised as an issue in this case — the equivocal position thus taken rests on no solid factual foundation. Straddling and tottering as it is on shaky ground, the opinion as a whole appears to me untenable and its validity questionable. Did Maria Florentino pass away in 1892? or based on the assumption that she died in 1885 is a mere obiter dictum; and if she died in 1885, then Part I of the opinion based on the assumption that she died in 1892 is likewise a mere obiter dictum. Thus it is not permissible for the Court to straddle the issue.

There is absolutely no basis in the evidence for the finding that Maria Florentino died in 1892. Indeed in its findings of fact the Court of Appeals made no mention of the date of Maria Florentino's demise, but in its conclusion of law the year she died was incidentally mentioned in the following manner:

. . . Habiendo pasado la propiedad de la casa de mamposteria a los demandantes, a la muerte de Maria Florentino, ocurrida en 1892 (el damandado sostiene que fue con anterioridad a 1889), no hay duda ninguna de que los demandantes adquirieron la servidumbre de luces y vistas sobre el camarin del demandado mediante titulo y por prescripcion (Art. 537).

The indirect statement to the effect that Maria Florentino died in 1892 was not based on any evidence but solely on the conjecture indulged in by counsel for the respondents in his brief: That she must have died in the year 1892 because the respondent Gabriel Florentino testified during the trial as to facts of his own personal knowledge, and since he was fifty-eight years old when he testified in 1938, it must be presumed that he was at least twelve years old when his aunt Maria Florentino died, and that therefore the death of the latter must have occurred in the year 1892. Such deductions were absurd on their face and the Court of Appeals clearly committed an error of law in adopting them. A finding of fact must be based on competent proofs — not on a mere conjecture.

The respondents themselves alleged under oath in their original as well as in their amended complaint (but were silent as to this in their second amended complaint) that the death of Maria Florentino occurred in the year 1888. No evidence was presented during the trial as to said date, but nevertheless the trial court applied the Civil Code. The petitioner as appellant before the Court of Appeals contended that the Partidas and not the Civil Code was the law applicable. It was then that respondents (appellees below) tried to show by deduction and conjecture that Maria Florentino must have died in 1892. To rebut that, appellant and his attorney made inquiries as to the true date of Maria Florentino's demise and discovered from the church record of burials as well as from her gravestone that she died on September 7, 1885, and was buried on the following day, September 8, 1885. They alleged in their affidavit that they had been unable to ascertain that date before on account of the misleading allegation in appellees' complaint that Maria Florentino die in 1888. A certified copy of the partida de entierro as well as a photograph of the gravestone showing the inscription of the date of Maria Florentino's death, were offered by appellant in a motion for new trial filed in the Court of Appeals on March 4, 1940; and on March 14, 1940, the Court of Appeals ordered that said motion, together with the exhibits accompanying it, "be attached to the record and brought to the attention of the Court when the case is considered on its merits." Nevertheless the Court of Appeals either ignored or overlooked said motion and the documentary evidence accompanying it when it considered and decided the case on the merits. Under section 2 of Rule 55, as well as under sections 497 of Act No. 190, the court should have considered the new evidence together with that adduced in the trial below. Thus, I think it cannot be doubted that Maria Florentino died on September 7, 1885, more than four years before the Civil Code took effect.

The majority seem to feel bound by the conjecture indulged in by the respondents and adopted by the Court of Appeals that Maria Florentino died in 1892, considering it as a finding of fact by the Court of Appeals. I beg to differ. A statement of fact not based on any proof whatever should not be accepted by this Court, especially when, as in this case, it is indubitably shown to be contrary to the truth.

It is said that the church record of Maria Florentino's burial and the photograph of her gravestone showing the inscription:

D. O. M.

AQUIYACEN LOS RESTOS MOORTALES DE

D. BONIFACIO F. ANATASIO

FALLECIO EN 26 DE OCTUBRE DE 1890

Y SU ESPOSA

Da MARIA FLORENTINO

QUE MURIO

EN 7 DE SETIEMBRE DE 1885

RECUERDO DE

Da ENCARNACION FLORENTINO

are not newly discovered evidence because they "could have been discovered by petitioner before the trial in the Court of First Instance by the exercise of due diligence." I disagree again. There was no incentive on the part f the petitioner to look for evidence of the exact date of Maria Florentino's demise while the case was being tried in the court below, for the respondents themselves alleged under oath in their original and amended complaints that she died in 1888, i.e., before the Civil Code took effect, and introduced no evidence whatever that she died after 1889. It was only when the respondents in their brief before the Court of Appeals tried to show by mental acrobatism that she must have died in 1892 in order to justify the application of the Civil Code, that the petitioner became interested in finding out the exact date of her death in order to impugn that contention. Under the circumstances, I entertain no doubt that the proofs offered may be considered newly discovered within the purview of our procedural law. After all, the rules of evidence are but a means to an end — to help establish the truth. To illustrate the irrationality of applying the rules of evidence too rigidly, let us suppose that an accused has been convicted of murder and sentenced to death, but during the pendency of his appeal his counsel discovers that the alleged victim is living and in good health, and counsel offers to prove that fact and even presents the "murdered" man in person before the court. Should this Court reject the offer of proof and affirm the death sentence simply because the appellant could have discovered the existence of the alleged victim by the exercise of due diligence? Judging from the opinion of the majority in this case, it should. What a travesty on justice

As a last argument on this point the majority say:

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for the first time in the Court of Appeals. (Sec. 497, Act. 190)

That is incorrect. Plaintiffs had the burden of proof. They are the ones who invoke the Civil Code. It was up to them to prove that the transaction took place after 1889. They realized that only during the appeal and, to supply their omission and even contradict their own sworn allegation, they resorted to amazing deductions from the age of one witness. So it was the respondents who "presented this issue for the first time in the Court of Appeals." The petitioner had the right to meet in then and there.

Since I cannot ignore the glaring fact that Maria Florentino died not in 1892 but in 1885, I cannot give my assent to the application of article 541 of the Civil Code to the controversy between the parties. I therefore regard all the profuse discussions of the law and citations of jurisprudence found in Part I of the majority opinion as purely academic.

Part II of the opinion is based on the assumption that Maria Florentino died in 1885. Here I agree with my esteemed colleagues on the factual basis but not on the legal conclusions.

The transitory provisions of the Civil Code, Rules I and 2, provide that "rights vested under the legislation prior to this Code by virtue of acts which transpired while it was in force, shall be govern by such prior legislation even if the code should otherwise provide with respect thereto, or should not recognize such rights"; and that "acts and contracts executed under the prior legislation, and which are valid in accordance therewith, shall produce all their effects as by these rules." The prior legislation referred to, insofar as this case is concerned, was none other than the Partidas.

How were easements acquire under the Partidas? In three ways only: By contract, by testament, or by prescription. (See law 14, title 31, Partida 3.) There was no provision in the Partidas similar to article 541 of the Civil Code regarding the creation or acquisition of an easement thru the establishment of an apparent sign thereof by the owner of two estates.

In their second alternative opinion the majority say that easement in question was constituted by an implied contract among the heirs of Maria Florentino under law 14, title 31, Partida 3. The law cited mentions "contract" and not "implied contract." As a source of right or obligation, "contract" is entirely different from "implied" contract." The former is based upon the mutual consent of the parties, supported by a lawful consideration, and with a definite subject matter, as, for instance, a contract of lease (articles 1254 and 1261, Civil Code); while the latter is merely imposed or implied by law from an act performed or committed by one of the parties without the consent and even against the will of the other, as, for instance, the obligation of an embezzler to indemnify his victim and the right of the latter to demand such indemnity. The mere fact that one has used the property of another by tolerance or implied consent of the latter can never give rise to an implied contract under which the former may assert and enforce a right to the continued use of that property against the owner.

Next it is said: "Granting for the sake of argument that this easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not inconsistent with the principle in question, so that there was a gap in the Partidas which the Supreme Court of Spain filled up from the Roman Law and modern codes by recognizing the existence of this kind of easement." (The principle referred to is that embodied in article 541 of the Civil Code.)

Under this alternative argument it is admitted that the Partidas (the pre-Civil Code legislation) contained no provision similar to article 541 of the Civil Code and hence it was necessary (?) to import a principle from the Roman Law in order to fill "a gap in the old legislation" as was done by the Supreme Court of Spain. in the last analysis, the alternative opinion applies to this case not the previous legislation as required by the Civil Code transitory provision but a principle of law imported from ancient Rome.

I disagree as to the necessity for such importation and "filling the gap" in order to justice to the parties in this case. Let us consider the facts: Before Maria Florentino died on September 7, 1885, she owned a parcel of land in the commercial center of Vigan on which were built a house and camarin. The camarin was one story and the house two stories high. Naturally, it was convenient for her to open windows on that side of the house overlooking the camarin so long as she did not decide to rebuild and raise the latter.

The pivotal question is, Did those windows constitute an apparent sign of easement of light and view in favor of the house and against the camarin under the legislation in force here at that time, so that upon the subsequent division of the two estates that sign would constitute a title of and create such an easement? The negative answer is inescapable because the Partidas, unlike the Civil Code, contained no provision supporting the affirmative. But my learned colleagues, emulating the Supreme Court of Spain in similar cases, apply principle of the Roman Law to "fill the gap" and justify the affirmative. The practical result of such "filling the gap" is to give retroactive effect to article 541 of the Civil Code, in violation of the transitory provision. The laws of Spain did not ex propio vigore apply to the Philippines. They had to be expressly extended here by Royal Decrees. Witness the Civil Code, the Partidas, etc. That being so, the opinion of the Supreme Court of Spain could not and did not have the force of law in the Philippines. For this reason, I cannot agree with what the majority say that "we cannot reject a doctrine established by the Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil Code in 1889." I know of no Royal Decree making such doctrine an integral part of the Spanish law in the Philippines.

If we do not apply article 541 of the Civil Code — and we cannot apply it because Maria Florentino died in 1885 — there is really a gap in the case for the respondents, but none in the case for the petitioner. ¹ Under the Partidas, or rather in the absence of an express provision therein similar to article 541, the petitioner should win; and since the parties litigant herein are entitled to have their case decided in accordance with the pre-Civil Code legislation in force in the Philippines as provided in the transitory provisions, since that legislation without any "gap-filling" is in favor of the petitioner, and since to "fill the gap" would prejudice him and unduly favor the respondents, the Court should abstain from so doing as a matter of law and justice.

I repeat that as a matter of law and justice the Court should not go out of its way to "fill a gap in the Partidas" by resorting to a principle in the Roman Law which was not a part of the law of this country at the time the transactions involved took place, and for which reason it could not have been in the mind of the parties. How can we charge Maria Florentino with knowledge of that principle of the Roman Law, or even of the decisions of the Spanish Supreme Court, when she constructed the windows in question? How can we make that principle binding upon her heirs, or assume that they acted in accordance therewith, when they took possession of their respective hereditary portions upon her death on September 7, 1885? Who knows but that had they been apprised of such a principle of Roman Law and told that it would be held binding on them they would have closed the windows in question or made an agreement regarding its continuance as long as the camarin was not rebuilt?lawphil.net

It is argued that, as the Supreme Court of Spain has held, the principle in question is not inconsistent with the provisions of the Partidas regarding the mode of acquiring and extinguishing easements. To that I reply: Is the Court authorized to amend the law by adding thereto a provision not inconsistent therewith and, what is worse, make the amendment retroactive? The Supreme Court of Spain of the last century apparently thought so, but as I cannot agree with it I must disregard its voice and follow the light of my own reason in the premises. By adopting and following the doctrine of the Supreme Court of Spain the majority of this Court have, I fear, established here a pernicious precedent. Hereafter no one in this country can safely rely on our codes and statutes as enacted by our own legislature, for the court may at any time read into them any provision or principle of law of any other jurisdiction — even of ancient and archaic Rome — so long as such provision or principle is not inconsistent therewith; altho, if we would stop and reflect for a moment, we should realize that, logically and legally speaking, any provision not included in the law must necessarily be considered inconsistent with the legislative will, for the legislature has not seen fir to incorporate i therein. "That is unfair! It is absurd! No court would do that!" you would protest. Then, I ask, "why do you do it in the instant case?"

As a third alternative opinion (Part III) the majority hold that the easement in question has been acquired by respondents thru prescription. This opinion, however, is predicated upon the assumption that the opening of the windows in question constituted an apparent sign of the positive easement of light and view, thus making the period of prescription run from the date of the demise of the original owner. But as we have seen , that assumption is wrong because it is promised upon the improper and unlawful application of either article 541 or its equivalent principle derived from the Roman Law and adopted by the Supreme Court of Spain. Without such assumption, the period of prescription in this case commenced to run only from January, 1938, when the petitioner began the construction of the new house and when it is supposed the respondents for the first time made a formal prohibition against the petitioner's raising his building and obstructing respondents' light and view, in accordance with the Yu-Tibo case cited in the majority opinion. Hence I think the prescription theory is also untenable.

"Filling the gap" is particularly unfortunate and disastrous in the present case because as a consequence the petitioner will be compelled to tear down a portion of his newly built strong-material house, which in the present emergency, for lack of building materials, he will be unable to repair or patch up, thus not only causing him unnecessary loss and hardship but also leaving the torn-off new building for the public to gape at and be scandalized with. The good Ilocanos would perhaps not be able to understand why, on top of wanton and horrible daily destructions by bombs now savagely going on in this war-torn world, the Court should find it necessary to add another without any apparent substantial or material benefit to anybody. "Verily," they would say, "this is a made world!"

In this age of fluorescent lights and air conditioning devices, the concommitant easements of light and view and altius non tollendi would seem to be only a deterrent to economic progress and should not be considered established except when the law applicable clearly so justifies.

For the foregoing reasons I vote for the reversal of the judgment appealed from.

PARAS, J., concurring:

I concur in the foregoing dissenting opinion of Mr. Justice Ozaeta,

Footnotes

¹ By special designation.

OZAETA, J., dissenting:

¹ That is why respondents tried to show that Maria Florentino lived seven years longer that she did.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 911 March 12, 1903

MAXIMO CORTES, plaintiff-appellant,
vs.
JOSE PALANCA YU-TIBO, defendant-appellant.

Felipe G. Calderon, for appellant.
Simplicio del Rosario, for appellee.

MAPA, J.:

This suit was brought to obtain an injunction, in accordance with the provisions of section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced by the defendant. The court below issued a preliminary injunction during the trial, but, upon, rendering final judgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgment and assigns error:

In the trial the following facts were admitted without contradiction:

(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; (2) that these windows have been in the existence since the year 1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63, from making improvements of any kind therein at any time prior to the complaint.

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, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on this part.

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.

A building may receive light in various manners in the enjoyment of an easement of light, because the openings through which the light penetrates may be made in one's own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact that, although anyone may open windows in his own wall, no one has a right to do so in the wall of another without the consent of the owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obtain the consent of the other coowner when the opening is to be made in a party wall.

This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion.

When a person opens windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal with his property as he may see fit, with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement: "For a man," says law 13, title 31, third partida, "should not use that which belongs to him as if it were a service only, but as his own property." Coexistent with this right is the right of the owner of the adjacent property to cover up such windows by building on his own land or raising a wall contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of the reciprocity of rights which should exist between abutting owners, and which would cease to exist if one could do what he pleased on his property and the other could not do the same on his. Hence it is that the use of the windows opened in a wall of one's own property, in the absence of some covenant or express agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property (judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to maintain the windows to the prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to article 1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they may be covered up at any time by the owner of the abutting property, and, as Manresa says in his commentaries on the Civil Code, "there is no true easement as long as the right to impede its use exists." The easement really consists of in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light (ne luminibus officiatur). The latter coincides in its effects, from this point of view, with the obligation of refraining from increasing the height of a building (altius non tollendi), which, although it constitutes a special easement, has for its object, at times, the prevention of any interruption of the light enjoyed by the adjacent owner.

It will be readily observed that the owner of the servient estate subject to such easement is under no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, but is simply restrained from doing anything thereon which may tend to cut off the light from the dominant estate, which he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the first condition is that which is peculiar to positive easements, and the second condition that which is peculiar to negative easements, according to the definition of article 533 of the Civil Code, it is our opinion that the easement of lights in the case of windows opened in one's own wall is of a negative character, and, as such, can not be acquired by prescription under article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate may, by a formal act have prohibited the owner of the servient estate from doing something which it would be lawful from him to do were it not for the easement.

The supreme court of Spain, in its decisions upon this subject, has established these principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of lights does not take place unless there has been some act of opposition on the part of the person attempting to acquire such a right against the person attempting to obstruct its enjoyment." The easements of light and view," says the judgment of March 6, 1875, "because they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or although they may have been used for more than twenty-eight years, if the indispensable requisite for prescription is absent, which is the prohibition on the one part, and the consent on the other, of the freedom of the tenement which it is sought to charge with the easement." In its judgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to make use of the soil and of the space above it, may, without restriction, build on his line or increase the height of existing buildings, unless he has been " forbidden to increase the height of his buildings and to thus cut off the light," and such prohibition has been consented to and the time fixed by law subsequently expired. The court also holds that it is error to give the mere existence or use of windows in a wall standing wholly on the land of one proprietor the creative force of true easement, although they may have existed from the time immemorial. Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890, hold that "as this supreme court has decided, openings made in walls standing wholly on the land of one proprietor and which overlook the land of another exist by mere tolerance in the absence of an agreement to the contrary, and can not be acquired by prescription, except by computing the time from the execution of some act of possession which tends to deprive the owner of the tenement affected of the right to build thereon." Various other judgments might be cited, but we consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has classified as positive easements of lights which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property nothing was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such deed."

The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presupposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular case passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code). It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a tenement among various persons -- in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed -- such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. Therefore, the decision in question is not in conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an easement of light established by the owner of the servient estate, and which continued in force after the estate was sold, in accordance with the special provisions of article 541 of the Civil Code.

Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down, because it refers to windows opened in a party wall, and not in a wall the sole and exclusive property of the owner of the dominant tenement, as in the cases referred to by the other decisions, and as in the case at bar. The reason for the difference of the doctrine in the one and the other case is that no part owner can, without the consent of the other, make in a party wall a window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of making such openings in such a wall might, therefore, be the basis for the acquisition of a prescriptive title without the necessity of any active opposition, because it always presupposes the express or implied consent of the other part owner of the wall, which consent, in turn, implies the voluntary waiver of the right of such part owner to oppose the making of such openings or windows in such a wall.

With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in this oral argument before the court, far from being contrary to it, is entirely in accord with the doctrine of the decisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighbor, through which the light enters his house," by this sole fact he shall acquire a prescriptive title to the easement of light, if the time fixed in the same law (ten years as to those in the country and twenty years as to absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this case, that is to say, when the windows are not opened in the wall of the neighbor, the law referred to requires as a condition to the commencement of the running of the time for the prescriptive acquisition of the easement, that "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to say, he must be prohibited from exercising his right to build upon his land, and cover the window of the other. This prohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in accordance with the law of the partidas, above mentioned, that some act of opposition be performed, in order that an easement may be acquired with respect to openings made in one's own wall.

For a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as well as the Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of one's neighbor to open a window through which the light may enter one's house" (equivalent to the so-called easement of luminum of the Romans); the other is "the easement which one house enjoys over another, whereby the latter can not at any time be raised to a greater height than it had at the time the easement was established, to the end at the light be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition of the former the time must begin, as we have seen, from the opening of the window in the neighbor's wall. As to the second, the time commences from the date on which he was "prevented from raising his house." Some of the judgments which establish the doctrine above laid down were rendered by the supreme court of Spain interpreting and applying the above cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the law itself.

The question as to whether the windows of the house of the plaintiff are, or are not, so-called regulation windows, we consider of but little importance in this case, both because the authority of the decisions of the law of the partidas, above cited, refers to all kinds of windows, and not to regulation windows solely, and because the record does not disclose, nor has the appellant even stated, the requirements as to such regulation windows under the law in operation prior to the Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has acquired by prescription the easement in question. With respect to the watershed which, according to the plaintiff, exists over the window in question, the record does not disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the notice served on him; on the other hand, the judgment of the court below contains no findings with respect to this fact, nor does it disclose the former existence of any such watershed. Furthermore, the opinion which we have formed with respect to this matter, in so far as we are able to understand the merits of the case, is that this shed was a mere accessory of the window, apparently having no other purpose than that of protecting it against the inclemency of the weather; this being so, we are of opinion that it should follow the condition of the window itself, in accordance with the legal maxim that the accessory always follows the principal. The appellant contends that the shed should be regarded as a projection within the provisions of article 582 of the Code; but it is sufficient to observe that this article speaks of windows with direct views, balconies, or similar projections, in order to conclude that the article does not refer to such watersheds, which have not the slightest degree of similarity to balconies, nor are they constructed for the purpose of obtaining the view -- this being the subject-matter which this article expressly purports to control -- inasmuch as such sheds have rather the effect of limiting the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent No. 63 at the time he covered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the part of the former of the prescriptive acquisition of the easement of the light in favor of that house, which, according to his statement, is under precisely the same conditions as the house of the plaintiff, does not necessarily imply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, supposing the facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance with respect to the plaintiff; but whatever may be the legal status of the windows in the house referred to with respect to the house No. 63, we cannot pass upon the point, nor can we form suppositions concerning the matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simple reason that it is not a point at issue in the case, and more especially because the defendant not only denied the existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affirms that demand has been made that the windows in said house be closed, as may be seen on page 8 of his brief.

The point discussed in this trial being whether the plaintiff has acquired the easement which he seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 of the Civil Code can not be invoked without taking for granted the very point at issue. This article refers to cases in which, under any title, the right has been acquired to have direct views, balconies, or belvederes over contiguous property. The existence of such a right being the very point at issue, the supposition upon which the article rests is lacking, and it is therefore not in point.

As a result of the opinion above expressed, we hold:

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.

Therefore, we affirm the judgment of the court below and condemn the appellant to the payment of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered.

Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.
Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the same contains error:

First, because the decision holds that the window opened in the plaintiff's own wall and watershed do not constitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code.

This allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration as to whether the windows and watershed do or do not constitute continuous and apparent easements, or jus projitiendi and jus spillitiendi. These questions were not drawn into issue by the complaint, and therefore any decision thereon one way or the other would have been mere dicta. What the court did hold was that the easement of light, when it is sought to claim such benefit from a window opened in one's own wall, as does the appellant with respect to the tenement of the defendant, belongs to the class of negative easements, and that on hold on that account the time of possession for prescriptive acquisition of the title thereto must be counted, not from the time of the opening of the windows, but from the time at which the owner thereof has executed some act of opposition tending to deprive the owner of the servient tenement of his right, under the law, build upon it to such height as he might see fit in the legitimate use of his rights of ownership. With respect to the watershed, the court held that the shed in question in the case is not included within the class of projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any of the other provisions of law cited by the appellant in his motion papers established any doctrine contrary to that laid down in the decision, either with regard to the watershed or with respect to the windows. It is not necessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reach the conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous.

Article 582 provides that windows with direct views, balconies, or other similar projections opening upon the tenement of one's neighbor are not permissible unless there are two meters distance between the wall in which such openings are constructed and the adjacent tenement. From this the appellant draws the conclusion that he who opens windows in his own wall without respecting the distance mentioned does not exercise an act of ownership, as stated in the decision, inasmuch as he violates an express provisions of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the law -- an act of ownership with the right of ownership. The owner of a thing does not cease to be such owner because in his manner of use or enjoyment thereof he violates some provision of law. The acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion, because this character is not derived from a greater or less degree of compliance with the provisions of law, but from the existence of the status of owner on the part of the person who exercises such acts. In order that the act performed by the owner of a wall in opening windows therein be a true act of ownership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code has been respected, although, considered from a legal point of view, it might be an illegal act, as not complying with the conditions imposed by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man should not use that which belongs to him as if it were a service only, but as his own property" is of general application, and does not refer to the easements which is a property owner may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very same law provides that easements which "a man imposes upon his house must be for the benefit of the tenement or thing of another, and not that of his own tenement;" and this is because things are of service to their owner by reason of dominion, and not in the exercise of a right of easement. "Res sua," says a legal maxim, "nemini jure servitutis servit."

The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated procedure no effect with respect to possession is applicable as much as to the prescription of real rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescription is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect with respect to possession, as that article provides, in conformity with article 444 of the same Code, it is evident that they can produce no effect with respect to prescription, whether ordinary or extraordinary. This is true whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one and the other case; that is, that there has been no true possession in the legal sense of the word. Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in its judgment of June 13, 1877, has held that such user lacks the creative force of a true easement, although continued from time immemorial. The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordinary period of prescription presuppose possession as a necessary requisite, even if without either just title or good faith.

The second error assigned is that in the decision the court holds that the gravamina constituted by the window and the projection are negative easements, against the provisions of article 533, which define them as positive, which definition, he adds, is supported by the judgments of the supreme court of Spain of February 7 and May 5, 1896, cited in paragraph 12 of the said decision, which judgments declare that the easement resulting from a window is positive.

It is not true that article 533 of the Civil Code says that the easement of light is positive, because it does nothing more than give in general terms the definition of positive easements and negative easements, without attempting to specify whether the easement of lights pertains to the first or to the second class. We have declared that the easement is negative, having in mind this very definition of the Code and the doctrine established by the judgments of the supreme court of Spain which have been cited in our opinion. The interpretation which the appellant attempts to give the article of the Civil Code cited is evidently erroneous and, consequently, the citation made by him in support of his contention is not in point.

Our opinion of the true extent and meaning of the judgments of the supreme court of Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is therefore unnecessary to go into the subject again here. We refer to our decision with respect to what was said therein upon this subject.

The decision of the court does not contain the declaration, as gratuitously assumed by the appellant, that the easement resulting from a projection is of a negative character; nor, in fact, had we any occasion to make such a declaration, in view of the nature of the issues raised and discussed during the trial. What we did, indeed, hold was that the watershed mentioned in the complaint, the purpose of which was simply to protect the window in question from sun and rain, was a mere accessory to that window, and that in no case could it be considered as a projection within the provisions of article 582 of the Civil Code, as so erroneously contended by the appellant at the trial. We find nothing in his motion papers which can in any way weaken this holding.

The third error is assigned is that the court holds that the easement of light, as negative, can not be acquired by prescription except by counting the period of possession from the time at which the owner of the servient tenement has been prohibited from making improvements which might interfere with said easement, contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the contrary.

This assertion is entirely destitute of foundation, inasmuch as neither in the law of the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which the appellant arbitrarily seeks to deduce from them. It is sufficient to read the text to reach the conclusion that the assertion is wholly gratuitous.

The fourth error assigned is that the court holds that the watershed, as being an accessory of the window, can not in itself constitute an easement, this being contrary to the provisions of articles 582 and 585 of the Civil Code, and law 2, title 31, partida 3, which do not make any such distinction.

Neither of the law cited speaks expressly of watersheds. We have held that article 582 refers solely to windows, balconies, and other similar projections, and that the watershed in question does not pertain to this class of projections, our holding being based upon the reasons given in our decision. The appellant advances no argument worthy of serious consideration, and therefore we continue to believe that our opinion in this matter is strictly in accordance with the law.

The appellant has attached to his motion for a rehearing two judgments, one rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of Spain on the 22d of February, 1892, and we think it well to say a few words concerning them.

In the opinion of the appellant these judgments support the theory contended for by him at the trial, that the easement of lights is positive and not negative. His error in so believing is evident, inasmuch as neither of the judgments referred to establishes any such doctrine. On the contrary, it appears clear, from the first of these judgments, that the easement referred to is negative in the opinion of the court which rendered it. This appears from the eight conclusion of law therein, which is literally as follows: "From the evidence introduced by the defendant, and even from the testimony of witnesses of the plaintiff, it has been proven that since 1828 the house in question has suffered no change or alteration in its roof, which projects over Cosio's lot, which constitutes the active opposition necessary in order to acquire by prescription the right to the light." It will be seen, then, that the latter part of the preceding transcript of the conclusion of law days down precisely the same doctrine as that expressed in our decision -- that active opposition is a necessary condition for prescriptive acquisition of an easement of light. And this also demonstrates conclusively that the court which rendered the judgment referred to considered the easement to be negative, inasmuch as positive easements do not require any active opposition as a basis for their prescriptive acquisition, such an act being solely necessary to the prescription of negative easements.

It would appear, judging from his allegations as a whole, that the appellant confuses positive easements with continuous easements, and the judgments referred to, in fact, declares in its fourth conclusion of law that the easement of light is continuous. If these were really so the error of the appellant would be manifest, because continuity is not a quality exclusively peculiar to positive easements; there are negative easements which are also continuous. Hence if is that the Civil Code, after classifying easements, in article 532, as continuous and discontinuous, classifies them also as positive and negative (art. 533), thus giving to understand that this latter classification depends upon other characteristics entirely distinct from the continuity or discontinuity of easements. If all continuous easements were positive and all discontinuous easements were negative, then the express division of easements into positive and negative made by the Code, after establishing the division of the same as continuous or discontinuous, would be entirely unnecessary, as they would be entirely merged or included in the latter classification. It is sufficient to read the text of the Code to understand beyond the possibility of a doubt that a negative easement may be continuous, and that a positive easement may be discontinuous, according to the special nature of each one.

With respect to the second judgment -- the judgment of the supreme court of Spain of February 22, 1892 -- it is certainly difficult to understand how the appellant could have imagined that he had found therein the slightest ground for his contention, inasmuch as it lays down no doctrine which relates even inference to the subject of easements, and simply holds, in the first of only two paragraphs in which its conclusions are contained, that "judgments should be clear, precise, and responsive to the complaint and the issues properly raised at the trial;" and in the second, that "the judgment appealed was contradictory as to the questions it decides, because it makes certain declarations favorable to some of the contentions in the plaintiff's complaint and then gives judgment for the defendant, without making any distinction." It was for this reason alone, and for no other, that the judgment appealed was reversed and annulled. In the judgment rendered by the same supreme court upon the merits of the case, as a result of this decision in cassation, no other doctrine is laid down than that "the judgment must be that the defendant comply with those claims advanced by the complaint to which he was consented, and that he must be discharged as to those allegations which have been denied by him and which have not been proved by the plaintiff."

There is not one word on these judgments which says that the easement of lights is positive, nor that a watershed constitutes a true projection within the meaning attached to this word in article 582 of the Civil Code, as has been vainly contended by the appellant in the trial.

Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is denied.

Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT OF THE UNITED STATES.

WILLARD, J.:

The application to this court for the allowance of a writ of error or appeal for the purpose of removing this case to the Supreme Court of the United States is denied.

Section 10 of the act of Congress of July 1, 1902, is as follows:

SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the United States.

There is no question in the case relating to the Constitution or any statute of the United States. The evidence submitted by the applicant shows that the value of his property over which the litigation turns is $11,867.70, money of the United States.

The fact that the plaintiff owns other houses in different parts of the city as to which he claims an easement of light similar to the one claimed in this case, that the decision in this case destroys all of these claimed easements, and that the value of those other houses exceeds $25,000, gold, is not important. The test is the value of the matter in controversy. The matter in controversy here was the easement of light and air over the property No. 63 Calle del Rosario and in favor of house No. 65. That easement could not be worth more than the house itself.

The easements in favor of other houses of the plaintiff over other lots than No. 63 were not in controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered.

Arellano, C.J., Torres, Cooper, Mapa and Ladd, JJ., concur.
McDonough, J., did not sit in this case.