AMOR V FLORENTINO

SYLLABUS

1. EASEMENTS; LIGHT AND VIEW AND "ALTIUS NON TOLLENDI"; REQUIREMENT UPON THE OWNER OF SERVIENT ESTATE; NEGATIVE AND POSITIVE EASEMENTS. — The easement of light and view and easement not to build higher (altius non tollendi) 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 negative.

2. ID.; MODES OF ESTABLISHING AND ACQUIRING EASEMENTS. — According to article 536, Civil Code, easements are established by law or by will of the owners. Acquisition of easements is first by title or its equivalent and secondly by prescription.

3. ID.; WHAT CHARACTERIZES ITS EXISTENCE. — Under article 541 of the Civil Code, the visible and permanent sign of an easement is the title that characterizes its existence.

4. ID.; WHEN AN EASEMENT IS DEEMED CREATED; NOBODY CAN HAVE AN EASEMENT OVER HIS OWN PROPERTY. — 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 nobody can have an easement over his own property, nemini sua res servit.

5. ID.; REQUISITE OF EASEMENT UNDER ARTICLE 530 OF CIVIL CODE. — The requisite of an easement as required by article 530 of the Civil Code is that there must be two proprietors — one, of the dominant estate and another, of the servient estate.

6. ID.; THE PRESENT CASE AND THAT OF CORTES vs. YU-TIBO (2 PHIL., 29), DISTINGUISHED. — The present case is distinguished from that of the case of Cortes vs. Yu-Tibo (2 Phil., 29), that in the latter it involved acquisition of easement by prescription, while in the present case the question is the acquisition of easement by title, or its equivalent, under article 541 of the Civil Code. While a formal prohibition was necessary in the former case in order to start the period of prescription, no such act is necessary in the present case because of the existence of the apparent sign which is a sufficient title in itself to create the easement.

7. ID.; EASEMENT ENJOYED BY FORMER OWNER SUBSISTS AFTER DIVISION OF ESTATE IN THE ABSENCE OF CONTRACT TO THE CONTRARY. — When an estate is divided between different persons, and in the contract nothing is said about 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.

8. ID.; LAW OF EASEMENT PRIOR TO CIVIL CODE IS THE SAME AS IN THE LATTER. — The same principle enunciated in article 541 of the Spanish 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 case should be governed by the Spanish law prior to the Civil Code, the easement in question would also have to be upheld.

9. ID.; PRESCRIPTIVE LAWS OF EASEMENT BEFORE AND AFTER THE CIVIL CODE. — The prescriptive period under the Partidas was 10 years between persons who were present, and 20 years between absentees. (4 Manresa, 605.) According to article 537 of the Civil Code, continuous 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.

10. ID.; RIGHTS OF PURCHASERS OF LAND BURDENED WITH APPARENT EASEMENTS. — Purchasers of lands burdened with apparent easements do not enjoy the rights of third persons who acquire property, though the burden is not recorded.

11. ID.; EASEMENTS EXIST SIDE BY SIDE WITH OWNERSHIP. — Absolute and unlimited dominion is unthinkable because it would destroy and defeat itself, inasmuch as proper enjoyment or property requires mutual service and forbearance among the adjoining estates. It is thus that easements, whether created by law or established by will of the parties, must perforce exist side by side with ownership.

FACTS: 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 Encarnacion Florentino. Upon the death of the testatrix in 1892, 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.

"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."

ISSUE/HELD: whether or not Article 541 applies to a division of property by succession. AFFIRMATIVE. there is an implied contract between them that the easements in question should be constituted.

RATIO DICIDENDI:

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."

It will thus be seen that under article 541 the existence of the apparent sign in the instant 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 concomitant and concurrent easement of altius non tollendi was also constituted, the heir of the camarin and its lot, Maria Encarnacion Florentino, 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.

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.

First, as to the modes of establishing and acquiring easements. According to Article 536, easements are established by law or by will of the owners. Acquisition of easements is first by title or its equivalent and secondly 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 such apparent sign under article 541 "supletoria del titulo constitutivo de la servidumbre."

standpoint of justice and public policy

— When Maria Encarnacion Florentino, as one of 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.

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.

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.

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.

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 the 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.