1. What are the four requisites to be established by an owner of an estate for him to claim a compulsory right of way?
By express provision of Articles 649 and 650 of the New Civil Code, the owner of an estate may claim a compulsory right of way only after he has established the existence of four (4) requisites, namely, (1) the estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate, and in so far as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.[U1]
2. Petitioners herein filed a case for recovery of property and damages against the defendant and herein private respondent, Celestino Afable.
Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr. In all these transfers, it was stated in the deeds of sale that the land was not registered.
Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.
Question:What is the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners?
Answer:Bailon-Casilao v. Court of Appeals
160 SCRA 739
Facts:
Petitioners herein filed a case for recovery of property and damages against the defendant and herein private respondent, Celestino Afable.
Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr. In all these transfers, it was stated in the deeds of sale that the land was not registered.
Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.
Issue:
What is the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners?
Held:
The Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale. The sale or other disposition affects only what would correspond to his grantor in the partition of the thing owned in common. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent Celestino Afable thereby became a co-owner of the disputed parcel of land as correctly held by the lower court since the sales produced the effect of substituting the buyers in the enjoyment thereof.
It may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owner is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it.
The action to demand partition is imprescriptible or cannot be barred by laches, absent a clear repudiation of the co-ownership by a co-owner clearly communicated to the other co-owners.
3. The plaintiff, Juan Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in twenty- five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she owed them. The defendants and appellants claim that their agreement gave plaintiff no right of usufruct in the land, saying that it appears that she only asked for this right and it does not appear that the defendants gave it to her. On the 10th of August, 1905, the owners of the twenty- five parcels of land made a partition thereof among themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were assigned to the defendants as the third to which they were entitled by reason of the conveyance from the plaintiff to them. They have been in possession of the tracts so assigned to them in partition since the date thereof, and are now in such possession, and have refused to recognized in the plaintiff any right of usufruct therein.
QUESTION:Whether or not the usufructuary is bound by the partition made by the owners of the undivided property although he took no part therein.
ANSWER:Juana Pichay v. Eulalo QuerolG.R. No. L-4452, October 1, 1908
Facts:
The plaintiff, Juan Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in twenty- five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she owed them. The defendants and appellants claim that their agreement gave plaintiff no right of usufruct in the land, saying that it appears that she only asked for this right and it does not appear that the defendants gave it to her. On the 10th of August, 1905, the owners of the twenty- five parcels of land made a partition thereof among themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were assigned to the defendants as the third to which they were entitled by reason of the conveyance from the plaintiff to them. They have been in possession of the tracts so assigned to them in partition since the date thereof, and are now in such possession, and have refused to recognized in the plaintiff any right of usufruct therein.
Issue:
Whether or not the usufructuary is bound by the partition made by the owners of the undivided property although he took no part therein.
Held:
The usufructuary shall be bound by the partition made by the owners of the undivided property although he took no part in the partition but the naked owner to whom the part held in usufruct has been alloted must respect the usufruct. The right of the usufructuary is not affected by the division but is limited to the fruits of said part alloted to the co-owner.
4. Eugenio del Saz Orozco died on February 7, 1922, leaving a will which he had executed on March 5, 1921, and was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son Jacinto del Saz Orozco y Mortera, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company and 94 shares of stock of the Manila Electric Company, according to the project of partition executed pursuant to said will and duly approved by the court. On September 11, 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the plaintiff receiving his proportionate portion of 11,428 shares. On November 17, 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the plaintiff received 17,142 shares, making a total of 28,570 shares.
QUESTION:Whether the stock dividend is part of the capital which should be preserved in favor of the owners or an income or fruits of the capital which should be given to and enjoyed by the life usufructuary, the plaintiff herein, as his own exclusive property.
ANSWER:Jacinto Orozco v. Salvador Araneta
G.R. No. L-3691, November 21, 1951
Facts:
Eugenio del Saz Orozco died on February 7, 1922, leaving a will which he had executed on March 5, 1921, and was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son Jacinto del Saz Orozco y Mortera, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company and 94 shares of stock of the Manila Electric Company, according to the project of partition executed pursuant to said will and duly approved by the court. On September 11, 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the plaintiff receiving his proportionate portion of 11,428 shares. On November 17, 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the plaintiff received 17,142 shares, making a total of 28,570 shares.
Issue:
Whether the stock dividend is part of the capital which should be preserved in favor of the owners or an income or fruits of the capital which should be given to and enjoyed by the life usufructuary, the plaintiff herein, as his own exclusive property.
Held:
A dividend, whether in the form of cash or stock, is income and, consequently, should go to the usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be declared only out of profits of the corporation, for if it were declared out of the capital it would be a serious violation of the law. With regard to the sum of P3,428.40 which is alleged to have been received by the plaintiff from the Benguet Consolidated Mining Company, as a result of the reduction of its capital in January, 1926, it appears that it has not been proven that the plaintiff has received said sum; on the contrary, it was denied by him as soon as he arrived in the Philippines from Spain. There is no ground, therefore, for ordering the plaintiff to deliver such sum to the defendants. The stock dividends amounting to 28,570 shares, above mentioned, belongs to Jacinto del Saz Orozco y Mortera exclusively and in absolute ownership.
5. In her complaint the plaintiff alleges that she is a natural child of Juana Narag and the late Jose Cecilio who, at the time of her concepcion, were both free to marry; that in a public instrument entitled "donacion mortis-causa" executed of 26 July 1924 by the late Jose Cecilio he acknowledge her to be his natural child and donated to her two parcels of land, one agricultural and the other residential, together with the improvements thereon; that in the agricultural land coconuts and palay valued P1,760 were harvested yearly, and from the residential an annual rent of P360 was collected, or a total of P12,710 from 1950 to the filing of the complaint; that subsequently the two parcels of land were declared in her name for tax purposes; that upon the demise of Jose Cecilio of 10 February 1950 the defendants Salvador and Antonio surnamed Cecilio, two legitimate children of the deceased, entered upon, took possession of, and claimed ownership over, the parcels of land; and that since then they refused and still refuse to deliver or return to her the two parcels of land. In addition to her two prayers stated at the beginning of this opinion, the plaintiff prayed that jointly and severally the defendants be ordered to pay her the sum of P12,710 representing the value of the natural and civil fruits of the parcels of land. On 24 August 1956 the defendants filed an answer setting up affirmative defenses and counterclaim for P5,000 as actual and moral damages arising from the false and frivolous complaint of the plaintiff and praying for the dismissal of the complaint. On 27 August, the plaintiff answered the counterclaim. Without filing any formal motion to dismiss, on 13 September 1957 the defendants served notice on the plaintiff that they would submit on 14 September 1957 at 8:30 o'clock in the morning, or as soon as they may be heard, their prayer for the dismissal of her complaint. In an order dated 16 September, the Court declared submitted the motion for the dismissal of the complaint and granted each party ten days within which to file a memorandum. On 20 September, the plaintiff filed an objection to the motion for dismissal which may be considered her memorandum. On 24 September the defendants filed their memorandum followed on 25 September by a supplemental memorandum. On 13 November, the Court entered an order dismissing the complaint, from which dismissal, as heretofore stated, the ð 7 3 plaintiff appealed.
The five errors assigned by the appellant claimed to have been committed by the trial court narrow down to main issues, namely: (1) has the action of the plaintiff Dolores Narag to be declared natural child of daughter of the late Jose Cecilio already prescribed? and (2) is the donation mortis causa executed not in accordance with the formalities of a will invalid?Resolve the two issues.
Answer:There is no doubt that the plaintiff's action to be declared natural child of the late Jose Cecilio has already prescribed, because it was not brought during the lifetime of the putative or presumed father. And her case does not fall within the exceptions provided for in article 137 of the old Civil Code, now article 285 of the new Civil Code, which allows the filling of such action even after the death of the alleged parents, to wit:
1. If the father or mother died during the minority of the child, in which case the latter may be commence the action within the four years next following the attainment of its majority.
2. If, after the death of the father or mother, some document, before unknown, should be discovered in which the child is expressly acknowledged.
In this case the action must be commenced within six months next following the discovery of such document.1
When the presumed or putative father Jose Cecilio died on 10 February 1950, the plaintiff was already far above the age of majority, it appearing in her baptismal certificate issued on 12 April 1953 by the parish priest of Saint John the Evangelist of Naga City that she was born on 5 January 1899. The document entitled "donacion mortis-causa" was known to, and in possession of, the appellant since 26 July 1924, the date of its execution, because on that date she signed the document. Counted from 26 July 1924 to the filing of the complaint on 6 August 1956, about 32 years had elapsed. It is, therefore, clear that whether under the provisions of the old or of the new Civil Code the appellant's action fro acknowledgment as natural child of the late Jose Cecilio is barred by the statute.
The donation of the two parcels of land is a donation mortis causa as admitted by the appellant herself. Nevertheless, she contends that while article 620 of the old Civil Code, now article 728 of the new, provides that donation mortis causa is governed by the rules established for testamentary succession, yet such provision refers to property disposition as governed by the law on succession and not to solemnities or formalities of a will — to substance, not to form. The contention cannot be accepted. In the case of Cariño vs. Abaya, 70 Phil., 182, this Court had that donations mortis causa can only be made with the formalities of a will. And as to the donation mortis causa in the present case appears not to have the formal requisites of a will such as the attestation clause, the signatures of three instrumental witnesses and that of the donor, which must appear on every page of the document, the donation is invalid.
The contention that the complaint may not be dismissed upon the grounds pleaded as affirmative defenses in the answer without any formal or separate motion to dismiss is untenable, for the reason that section 5, Rule 8, allows such dismissal.
6. Guillermo Ceniza died intestate on July 11, 1951, leaving a parcel of land at Poblacion, Mandaue City. Twenty years later on July 17, 1973 his children Benedicta, Guillermo, Jr., Victoria, Eduardo, and Carlos executed an extrajudicial declaration of heirs and partition, adjudicating and dividing the land among themselves as follows:
1. To Benedicta T. Cabahug, Lot A subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NW. boundary in favor of Lots B, E, and D, of the subdivision;
2. To Eduardo Ceniza, Lot B subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lots A, D & E of the subdivision;
3. To Carlos Ceniza, Lot C;
4. To Guillermo Ceniza Jr., Lot D subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NE. boundary in favor of Lot B and E of the subdivision; and
5. To Victoria Ceniza, Lot E, subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lot D of the subdivision.1
Lots A, B, and C were adjacent to a city street. But Lots D and E were not, they being interior lots. To give these interior lots access to the street, the heirs established in their extrajudicial partition an easement of right of way consisting of a 3-meter wide alley between Lots D and E that continued on between Lots A and B and on to the street. The partition that embodied this easement of right of way was annotated on the individual titles issued to the heirs.
Roughly, the lots including the easement of right of way would take the following configurations,2 not drawn here to accurate size and proportion but illustrative of their relative locations:
But, realizing that the partition resulted in an unequal division of the property, the heirs modified their agreement by eliminating the easement of right of way along Lots A, D, and E, and in its place, imposed a 3-meter wide alley, an easement of right of way, that ran exclusively along the southwest boundary of Lot B from Lots D and E to the street.3 Thus:
Victoria (now petitioner Victoria Salimbangon) later swapped lots with Benedicta with the result that Victoria became the owner of Lot A, one of the three lots adjacent to the city street. Victoria and her husband (the Salimbangons) constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other, located in the interior of Lot A, used the alley or easement of right of way existing on Lot B to get to the street. Victoria had this alley cemented and gated.
Subsequently, however, respondent spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and E from all their owners. The Tans built improvements on Lot B that spilled into the easement area. They also closed the gate that the Salimbangons built. Unable to use the old right of way, the Salimbangons lodged a complaint with the City Engineer of Mandaue against the Tans. For their part, the Tans filed an action with the Regional Trial Court (RTC) of Mandaue against the Salimbangons in Civil Case MAN-3223 for the extinguishment of the easement on Lot B and damages with application for preliminary injunction.4 The Salimbangons filed their answer with counterclaims.
After hearing or on February 9, 2001 the RTC rendered judgment, upholding the Salimbangons’ easement of right of way over the alley on Lot B, the lot that belonged to the Tans. The court pointed out that the easement in this case was established by agreement of the parties for the benefit of Lots A, D, and E. Consequently, only by mutual agreement of the parties could such easement be extinguished. The RTC declined, however, to award damages to the Salimbangons.
Both parties appealed to the Court of Appeals (CA) in CA-G.R. CV 73468. On July 27, 2007 the CA5 reversed the RTC decision, extinguished the easement of right of way established on the alley in Lot B of the Tans, and denied the Salimbangons’ claim for damages. The court ruled that based on the testimony of one of the previous owners, Eduardo Ceniza, the true intent of the parties was to establish that easement of right of way for the benefit of the interior lots, namely, Lots D and E. Consequently, when ownership of Lots B, D, and E was consolidated into the Tans, the easement ceased to have any purpose and became extinct. The Salimbangons filed a motion for reconsideration but the CA denied the same in its resolution of October 14, 2008. This prompted them to file the present petition.
Questions Presented
Two questions are presented:
1. Whether or not the CA erred in admitting in evidence contrary to the parol evidence rule Eduardo Ceniza’s testimony respecting the true intent of the heirs in establishing the easement of right of way as against what they stated in their written agreement; and
2. Whether or not the CA erred in ruling that the easement of right of way established by the partition agreement among the heirs for the benefit of Lot A has been extinguished.
Rule on the two questions:
Answer: SPS. MANUEL AND VICTORIA SALIMBANGON, Petitioners,
vs.SPS. SANTOS AND ERLINDA TAN, Respondents. G.R. No. 185240 January 20, 2010
7.Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner owns the dominant estate which has an area of 2,590 square meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East by Felino Matienzo and on the West by Pedro Matienzo. Private respondents co-own the 405-square-meter servient estate which is bounded on the North by the National Highway (Laurel-Talisay Highway), on the South by Tomas Encarnacion, on the East by Mamerto Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands between the dominant estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to the national highway just crossed the servient estate at no particular point. However, in 1960 when private respondents constructed a fence around the servient estate, a roadpath measuring 25 meters long and about a meter wide was constituted to provide access to the highway. One-half meter width of the path was taken from the servient estate and the other one-half meter portion was taken from another lot owned by Mamerto Magsino. No compensation was asked and non was given for the portions constituting the pathway. 1
It was also about that time that petitioner started his plant nursery business on his land where he also had his abode. He would use said pathway as passage to the highway for his family and for his customers.
Petitioner's plant nursery business through sheer hard work flourished and with that, it became more and more difficult for petitioner to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts. In January, 1984, petitioner was able to buy an owner-type jeep which he could use for transporting his plants. However, that jeep could not pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their property to be added to the existing pathway so as to allow passage for his jeepney. To his utter consternation, his request was turned down by the two widows and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over an additional width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land. 2
During the trial, the attention of the lower court was called to the existence of another exit to the highway, only eighty (80) meters away from the dominant estate. On December 2, 1985, the lower court rendered judgment dismissing petitioner's complaint. It ruled:
It is clear, therefore, that plaintiff at present has two outlets to the highway: one, through the defendants' land on a one meter wide passageway, which is bounded on both sides by concrete walls and second, through the dried river bed eighty meters away. The plaintiff has an adequate outlet to the highway through the dried river bed where his jeep could pass.
The reasons given for his claim that the one-meter passageway through defendants' land be widened to two and one-half meters to allow the passage of his jeep, destroying in the process one of the concrete fences and decreasing defendants' already small parcel to only about 332.5 square meters, just because it is nearer to the highway by 25 meters compared to the second access of 80 meters or a difference of only 65 meters and that passage through defendants' land is more convenient for his (plaintiffs) business and family use are not among the conditions specified by Article 649 of the Civil Code to entitle the plaintiff to a right of way for the passage of his jeep through defendant's land. 3
Question: If you were the Judge, will you grant an additional width of at least two meters? Explain.
Answer:TOMAS ENCARNACION, petitioner,
vs.THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN,* respondents. G.R. No. 77628 March 11, 1991
7. In the deed of donation it was stated that the same was made in consideration of the services rendered to the donor by the donee; that "title" to the donated properties would not pass to the donee during the donor's lifetime, and that it would be only upon the donor's death that the donee would become the "true owner" of the donated properties. However, there was the stipulation that the donor bound herself to answer to the donee for the property donated and that she warranted that nobody would disturb or question the donee's right.
(a) Is this a donation inter vivos or mortis causa? Explain. (b) Cite at least five distinctions between a donation mortis causa and a donation inter vivos.
Answer.. In the Balaqui case, it was provided in the deed that the donation was made in consideration of the services rendered to the donor by the donee; that "title" to the donated properties would not pass to the donee during the donor's lifetime, and that it would be only upon the donor's death that the donee would become the "true owner" of the donated properties. However, there was the stipulation that the donor bound herself to answer to the donee for the property donated and that she warranted that nobody would disturb or question the donee's right. [U2]
Notwithstanding the provision in the deed that it was only after the donor's death when the 'title' to the donated properties would pass to the donee and when the donee would become the owner thereof, it was held in the Balaqui case that the donation was inter vivos.
It was noted in that case that the donor, in making a warranty, implied that the title had already been conveyed to the donee upon the execution of the deed and that the donor merely reserved to herself the "possesion and usufruct" of the donated properties.
8. In that clause it is stated that, in consideration of the affection and esteem of the donors for the donees and the valuable services rendered by the donees to the donors, the latter, by means of the deed of donation, wholeheartedly transfer and unconditionally give to the donees the lots mentioned and described in the early part of the deed, free from any kind of liens and debts:
“Na dahil at alang-alang sa pagmamahal at masuyong pagtingin na taglay ng NAGKAKALOOB (DONORS) sa Pinagkakalooban (DONEES) gayun din sa tapat at mahalagang paglilingkod noong mga lumipas na panahon na ginawa ng huli sa una ang nabanggit na nagkakaloob sa pamagitan ng kasulatang ito ng pagkakaloob (Donation) ay buong pusong inililipat at lubos na ibinibigay sa nasabing pinagkakalooban ang lupang binabanggit at makikilala sa unahan nito, laya sa ano mang sagutin at pagkakautang, katulad nito:
X x x
(3) Gayun din samantalang kaming mag-asawang Gabino Diaz at Severa Mendoza ay buhay, patuloy and aming pamamahala, karapatan, at pagkamayari sa mga nasabing pagaari na sinasaysay sa unahan nito na pagaari namin; ngunit sakaling kami ay bawian ng buhay ng Panginoong Dios at mamatay na, ang mga karapatan at pagkamayari ng bawa't pinagkalooban (Donatorios) sa bawa't pagaari nauukol sa bawa't isa ay may lubos na kapangyarihan.”
QUESTION: Gleaning from said “tagalog provisions” is there a donation inter vivos or mortis causa? Explain.
9. Distinguish a nuisance per se and a nuisance per accidens, with respect to its (a) nature (b) manner of its abatement.
: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance
10. 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.
Question: Is the easement negative or positive? Explain.
Answer: 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.
MAXIMO CORTES, plaintiff-appellant, vs.JOSE PALANCA YU-TIBO, defendant-appellant. G.R. No. 911 March 12, 1903
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