[WITH RESOLUTION OF JANUARY 20, 1961]

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
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, sufficient 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 specific, particular act, but a formal act. The following definitions 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 definitions, 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 specifically 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 Certificates 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.
Certified copies of these certificates 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 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.

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^[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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January 20, 1961

BARRERA, J.:

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 findings of the lower court, affirmed by the Court of
Appeals, that the building under construction violated the
aforementioned ordinance (from which no appeal was interposed) having
become final, 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 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.