EN BANC

[G.R. No. L-14116. June 30, 1960.]

CID petitioner, vs . IRENE P. JAVIER, MANUEL P.

LAUREANA A. CID,
JAVIER, JOSEFINA P. JAVIER, FERNANDO P. JAVIER, JOSE P.
JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN P.
JAVIER, and LEONOR CRISOLOGO , respondents.

Antonio V. Raquiza for petitioner.

Cesar D. Javier for respondents.

SYLLABUS

1. EASEMENTS; ACQUISITION OF NEGATIVE EASEMENT BY PRESCRIPTION;

MEANING OF "FORMAL ACT" IN ARTICLE 538, SPANISH CIVIL CODE. — The "formal act"
required in Article 538 of the Spanish civil code, by which the owner of the dominant
estate, in order to effectively establish a negative easement, should forbid the owner of
the servient estate to perform any act which would be lawful without the easement,
refers to an instrument acknowledged before a notary public. That this is the
intendment of the law although not expressed in exact language is the reason for the
clari cation made in Article 621 of the new Civil code, which speci cally requires the
prohibition to be in "an instrument acknowledged before a notary public."
2. ID.; ID.; EFFECT OF FAILURE TO HAVE THE EASEMENT ANNOTATED ON
THE CERTIFICATE OF TITLE. — Granting that in the instant case an easement of light
and view was acquired by prescription, it was 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.

DECISION

BARRERA J :
BARRERA, p

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
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 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." (Emphasis supplied.)
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, su cient 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 speci c, particular act, but a formal act. The following de nitions are
pertinent:
"Formal — or pertaining to form, characterized by one due form or order,
done in due form or 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 de nitions, 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
clarification 2 made in Article 621 of the new Civil Code which speci cally 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 Certi cates 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. Certi ed
copies of these certi cates 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
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 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.

RESOLUTION

January 20, 1961

BARRERA J :
BARRERA, p

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
ndings of the lower court, a rmed by the Court of Appeals, that the building under
construction violated the aforementioned ordinance (from which no appeal was
interposed) having become nal, 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
exacted, the adjustment should be made not only by petitioner, but also by the
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 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).

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