Republic of the Philippines SUPREME COURT Manila EN BANC March 12, 1903 G.R. No.

911 MAXIMO CORTES, plaintiff-appellant, vs. JOSE PALANCA YU-TIBO, defendant-appellant. Felipe G. Calderon, for appellant. Simplicio del Rosario, for appellee. MAPA, J.: Facts: The case was brought for the purpose of restraining the continuation of certain buildings commenced by the defendant. The wife of the plaintiff owns house No. 65 in Calle Rosario. House No 65. Has windows which receives light and air from the adjacent house, which is house No 63 of the same street. Plaintiff contends that these windows have been in existence since 1843. The defendant, tenant of house No 63 has commenced works that raised the roof of house No 63 which covered house No 65, depriving house No 65 of air and light formerly received through the window. The contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired from prescription an easement of light in favor of the house No. 65, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the said easement. He contends that the easement of light is positive; and that therefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced. The defendant, on the contrary, contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement. The court below in its decision held in the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court. Issue: Was the easement positive or negative? When did the prescriptive period start to run? Doctrine and Held: Ruling 1 - The Court clarified that mere act of opening one owns window is an act of dominion not of easement. The easement here is the (possible) prohibition of creating any improvements on the property of the defendants (negative easement) that may impede or limit the use of the window. Thus, plaintiff is totally wrong in saying that prescription for the easement starts to kick in when the window was made and acknowledge by the adjacent owner. In fact, what is needed in this situation is a formal act through a notarial prohibition so that prescriptive period will start. The fact that the defendant has not covered the windows of the apellant/ plaintiff does not necessarily imply the recognition of the acquisitive prescription of the alleged easement as this might just be a result of a mere tolerance on the part of the defendant. Plaintiffs asked for a rehearing but was again denied! Plaintiff mentions about their windows and watersheds to be apparent easements, or just projitiendi and jus spillitiendi. The court says that the plaintiffs are obviously confused between the right exercised by owners and the rights provided in easements.

Ruling 2 - GENERAL RULE: No part owner can, without the consent of the other, make in a party wall a window or opening of any kind (Art. 580) The very fact of making such opening in such a wall may be the basis for acquisition of a prescriptive title without the necessity of any active opposition because it always presupposes the express or implied consent of the owner of the wall, which in time, implies a voluntary waiver of the right to oppose. EXCEPTION: When the windows are not opened on the neighbor's side, there is need of a prohibition from exercising that neighbor's right to build on his land or cover the closed window on the party wall. The period of prescription starts to run from such prohibition if the neighbor consents to it. Note: The law refers to all kinds of windows, even regulation windows. According to article 528, windows with "similar projections" include sheds. The exception applies in this case because 1) what is concerned is a party wall; 2) there was no prohibition on Yu-Tibo to build anything that would cover the Cortes' window (Yu-Tibo wanted to raise his roof which would in effect cover 1/2 of the window).