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:
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:
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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