Amor vs. Florentino

An apparent sign of easement, such as windows, established by the proprietor of two estates, constitutes a title of easement upon the division of ownership, and the concomitant negative easement of altius non tollendi is inseparable from the positive easement of light and view, both being created by operation of Article 541 of the Civil Code without need for prescription or formal prohibition.

Maria Florentino owned a house and a camarin (warehouse) on separate but adjoining lots in Vigan, Ilocos Sur. The house had, on its north side, three windows on the upper storey and one on the ground floor through which it received light and air from the lot where the camarin stood. In her will of September 6, 1885, she devised the house and its lot to Gabriel Florentino and Jose Florentino, and the warehouse and its lot to Maria Encarnacion Florentino. The testatrix died; the date was disputed. After her death, neither the devisees of the house nor the devisee of the warehouse said or did anything concerning the windows. The windows remained open and were used continuously. In 1911, Maria Encarnacion Florentino sold the warehouse and lot to petitioner Severo Amor, with the deed stating the property was inherited from her aunt Maria Florentino. In January 1938, petitioner demolished the warehouse and began constructing a two-storey house that would block the windows of respondents’ house. Respondents sued to enjoin the construction.

• Original Ownership and Windows: Over fifty years before the action, Maria Florentino owned a two-storey house and a camarin on adjacent lots in Vigan. The house had four windows on the north side—three on the upper floor, one on the ground floor—receiving light and air from the camarin lot. The camarin was a one-storey structure.

• Devise and Division: By will dated September 6, 1885, Maria Florentino devised the house and its lot to respondents (Gabriel Florentino and Jose Florentino, father of the other respondents) and devised the camarin and its lot to Maria Encarnacion Florentino. The testatrix died; the Court of Appeals found her death occurred in 1892. At the time the devisees took possession, nothing was said or done about the windows. Respondents did not renounce the use of the windows, nor did they permanently close them; Maria Encarnacion Florentino did not object.

• Sale to Petitioner: On July 14, 1911, Maria Encarnacion Florentino sold the camarin and its lot to petitioner Severo Amor. The deed of sale recited that the vendor had inherited the property from her aunt, Maria Florentino.

• Construction and Obstruction: In January 1938, petitioner demolished the old camarin and commenced building a two-storey house. By March 1, 1938, when respondents filed suit, the new construction had reached a height that shut off the light and air from the four windows. The trial court found that construction was nearly complete when the preliminary injunction hearing was held, and denied the injunction on that ground.

• Newly Offered Evidence: On appeal, petitioner sought to introduce a certified copy of a burial certificate and a photograph of the gravestone to prove Maria Florentino died on September 7, 1885, arguing that the pre-Civil Code law (Partidas) should apply. The Court of Appeals did not expressly pass on the motion but, in its decision, noted the death occurred in 1892, with reference to petitioner’s contrary contention.

• Date of Death and Applicable Law: Petitioner argued that Maria Florentino died in 1885, before the Civil Code took effect in 1889, and therefore the law of the Partidas governed. The allegedly new evidence (burial certificate and gravestone photograph) conclusively established the 1885 date, and the Court of Appeals erred in failing to consider it.

• Cortes vs. Yu-Tibo Controlling: Petitioner maintained that under Cortes vs. Yu-Tibo, 2 Phil. 24, the mere opening of windows on one’s own wall does not create an easement; a negative easement of altius non tollendi requires a formal prohibition to commence the prescriptive period. Since respondents never forbade the obstruction, no easement arose.

• Innocent Purchaser: Petitioner claimed to be an innocent purchaser for value who was not bound by an unrecorded burden. The windows were not an apparent sign that would put him on notice that a legal easement existed.

• Article 541 Applicable: Respondents asserted that Maria Florentino died in 1892 (as pleaded and found by the trial court) and that Article 541 of the Civil Code applied. The windows were an apparent sign of easement; upon division of ownership by death, that sign became a title creating an easement of light and view and the accompanying easement not to build higher.

• Prescription: Even if Article 541 did not directly apply, the easement was continuous and apparent and had been exercised for more than the prescriptive period of twenty years under the Civil Code (or ten years under the Code of Civil Procedure), vesting the easement by prescription.

• Notice to Petitioner: The windows were visible, and the deed of sale mentioned inheritance from the original owner. Petitioner was thus on inquiry notice and could not claim to be an innocent purchaser.

• Date of Death and Governing Law: Whether the Court of Appeals committed reversible error in finding that Maria Florentino died in 1892, and whether the Civil Code applies.

• Creation of Easement Under Article 541: Whether an easement of light and view, together with the negative easement of altius non tollendi, was created under Article 541 of the Civil Code by reason of the windows existing as an apparent sign at the time of the original owner’s death.

• Distinguishing Cortes vs. Yu-Tibo: Whether the doctrine of Cortes vs. Yu-Tibo (requiring formal prohibition for acquisition of negative easement by prescription) negates the existence of the easement.

• Prescription: Whether the easement was independently acquired by prescription.

• Innocent Purchaser Status: Whether petitioner was an innocent purchaser for value who took the property free of the easement.

• Pre-Civil Code Law (Assuming 1885 Death): Assuming, arguendo, that Maria Florentino died in 1885, whether the same easement could be sustained under the pre-Civil Code Spanish legislation (the Partidas).

• Date of Death and Governing Law: The finding that Maria Florentino died in 1892 was a factual conclusion of the Court of Appeals drawn from the testimony of Gregorio Florentino—who was 58 in 1938 and testified to personal knowledge, which the appellate court reasoned he would not have had at age 5 in 1885. This inference was not necessarily erroneous and could not be reviewed. The newly offered burial certificate and photograph could have been discovered with due diligence before trial; petitioner’s failure to do so precluded their consideration under section 497 of Act No. 190. Moreover, the date of death was raised for the first time on appeal and could not be entertained. Article 541 of the Civil Code therefore governed.

• Creation of Easement Under Article 541: The windows constituted an apparent sign of easement between the two estates, established by their common proprietor. Upon the death of the original owner, the ownership of the two estates was divided by succession, one passing to respondents (dominant) and the other to petitioner’s predecessor (servient). Because nothing was said or done to the contrary—the windows were neither renounced nor removed—that apparent sign operated as a title under Article 541, creating both the positive easement of light and view and the inseparable negative easement of altius non tollendi. The negative easement is a necessary consequence of the positive one; without it, the easement of light and view could not subsist.

• Distinguishing Cortes vs. Yu-Tibo: Cortes vs. Yu-Tibo involved two properties that had always belonged to different owners and addressed acquisition of a negative easement by prescription, for which a formal prohibition was required. The present case rests on the acquisition of a positive easement by title (the apparent sign equivalent) under Article 541 upon division of a single original owner’s property. The decision in Cortes vs. Yu-Tibo itself expressly distinguished that situation, recognizing that under Article 541 the apparent sign is the title and no formal prohibition is needed.

• Prescription: Assuming Article 541 did not apply, the easement of light and view is continuous and apparent. Whether the prescriptive period is twenty years (Spanish Civil Code) or ten years (Code of Civil Procedure), more than the requisite period elapsed from either 1892 or 1885 until the action was brought in 1938. Prescriptive acquisition was therefore independently satisfied.

• Innocent Purchaser Status: Petitioner was not an innocent purchaser. The windows were plainly visible, and the deed of sale stated the property was inherited from the original owner. He was duty-bound to inquire into the significance of those windows, and having failed to do so, he took the servient estate burdened by the apparent easement. Under Spanish jurisprudence, purchasers of land burdened with apparent easements are not protected as third persons even absent recordation.

• Pre-Civil Code Law (Assuming 1885 Death): Even if Maria Florentino had died in 1885, the principle expressed in Article 541 was already an integral part of Spanish law before the Civil Code, derived from Roman law and consistently applied by the Supreme Court of Spain. The same result would follow on any of three grounds: (1) an implied contract among the heirs under Law 14, Title 31, Partida 3, because the devisee of the servient estate knowingly acquiesced in the continued existence of the windows; (2) the doctrine of the Spanish Supreme Court, which filled a gap in the Partidas by importing the Roman-law rule that an apparent sign of service between two estates ripens into an easement upon division; and (3) Law 17, Title 31, Partida 3, dealing with extinguishment of easements by merger, did not prohibit the creation of an easement by an apparent sign upon division of the merged estates, as the situations are juridically distinct.

• Apparent Sign as Title under Article 541 — When a single proprietor establishes an apparent sign of an easement between two estates he owns, and later alienates one of them or divides the ownership, that sign is considered a title for the active and passive continuance of the easement, unless the instrument of alienation states otherwise or the sign is removed before execution of the deed. The moment of creation of the easement is the moment of division, for only then do two distinct proprietors exist (dominant and servient). (Article 541, Civil Code.)

• Inseparability of Light-and-View and Altius Non Tollendi — An easement of light and view necessarily implies the negative easement not to build higher (altius non tollendi), because the former cannot exist without the latter. When an easement is acquired under Article 541, it suffices to attend to the positive aspect (the windows), and the negative easement is established by operation of law as a consequence.

• Acquisition of Positive Easement by Title vs. Negative Easement by Prescription — Cortes vs. Yu-Tibo is limited to acquisition of a negative easement (altius non tollendi) by prescription when properties have always belonged to different owners; in that context, a formal prohibition is needed to start the prescriptive period. When, however, the easement originates from a single proprietor’s apparent sign under Article 541, the acquisition is by title (or its equivalent), and the rule requiring formal prohibition does not apply.

• Apparent Easement as Notice to Purchasers — A purchaser of land burdened with an apparent easement (such as visible windows) is not an innocent purchaser for value; the visibility of the sign imposes a duty to inquire, and the purchaser takes subject to the easement even if it is not recorded. (Following Spanish Supreme Court Sentence of April 5, 1898.)

• Pre-Code Survival of the Apparent-Sign Principle — Before the Civil Code, the Spanish Supreme Court had already recognised that upon division of a common owner’s estate, a visible and permanent sign of service between the two portions gives rise to an easement by implied contract or by application of Roman-law principles, the Partidas not being incompatible with that rule. The principle was an integral part of the Spanish law applicable in the Philippines before 1889.

• “The existence of an apparent sign of an 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.” (Article 541, Civil Code, as quoted in the decision.)

• “The easement is therefore created from the time of the death of the original owner of both estates, so when petitioner bought the land and the camarin thereon from Maria Encarnacion Florentino, the burden of this easement continued on the real property so acquired because according to Article 534, ‘easements are inseparable from the estate to which they actively or passively pertain.’”

• “That in easements whose positive aspect appears tied up with the negative aspect, just as for the purposes of prescription the negative aspect has to be considered preferential, so for the purposes of Article 541 it is sufficient to view the positive aspect, and therefore the existence of openings or windows between two estates which belonged to the same owner is sufficient to establish, when the ownership of these estates is divided, the easement of light or view, and with them the easements of altius non tollendi because without the latter, the former cannot exist.” (quoting Manresa.)

• “It will thus be clear that one of the essential differences between that case [Cortes vs. Yu-Tibo] and the present is that while the Yu-Tibo case involved acquisition of easement by prescription, in the present action the question is the acquisition of easement by title, or its equivalent, under article 541.”

• Cortes vs. Yu-Tibo, 2 Phil. 24 (1903) — Distinguished. That case ruled on acquisition of a negative easement by prescription between two original owners; it expressly acknowledged the distinct situation under Article 541 where an apparent sign established by a common owner operates as a title.

• Sentences of the Supreme Court of Spain of February 7, 1896; February 6, 1904; May 29, 1911; November 17, 1911 — Followed as authoritative interpretations of Article 541, holding that an apparent sign of easement between two estates of a single owner becomes a title of easement upon division.

• Sentence of the Supreme Court of Spain of November 7, 1883; September 14, 1867; June 7, 1883 — Cited to show that before the Civil Code, the same principle was already recognised by Spanish jurisprudence as consistent with the Partidas.

• Manresa, Comentarios al Código Civil Español, vol. 4 — Authority for the proposition that Article 541 applies to division of property by succession.

• Article 541, Spanish Civil Code — Applied to create the easement of light and view and the easement of altius non tollendi upon the death of the original owner; the windows were the apparent sign, and no contrary stipulation was made.

• Article 537, Spanish Civil Code — Continuous and apparent easements are acquired by title or by prescription. The easement here was acquired both by title (the apparent sign under Article 541) and, alternatively, by prescription.

• Article 536, Spanish Civil Code — Easements are established by law or by the will of the owners; the modes of acquisition include title (or its equivalents under Articles 540 and 541) and prescription.

• Article 534, Spanish Civil Code — Easements are inseparable from the estates to which they pertain; thus the burden passed to petitioner upon purchase.

• _Law 14, Title 31, _Partida 3___ — Provided that easements are acquired by contract, will, or prescription. The Court found that an implied contract among the heirs gave rise to the easement under the pre-Code regime.

• _Law 17, Title 31, _Partida 3___ — Dealt with extinguishment of easements by merger; held not to prohibit creation of an easement by an apparent sign upon division, as merger and division are juridically distinct events.

• Section 497, Act No. 190 — Newly discovered evidence must be such as could not, with reasonable diligence, have been discovered before trial; the burial certificate and photograph were properly excluded.

Yulo, C.J., Moran, Imperial, and Havtiveras, JJ., concurred. (Imperial and Havtiveras were designated by special designation.)

• Justice Ozaeta, joined by Justice Paras — The dissent took the position that Maria Florentino died on September 7, 1885, as proven by the burial certificate and gravestone, and thus the Civil Code did not apply. The pre-Civil Code law (the Partidas) contained no provision equivalent to Article 541, and the majority improperly imported a Roman-law principle to fill a gap in the legislation, effectively giving retroactive effect to the Civil Code. Under the Partidas, the mere opening of windows on one’s own wall, without more, created no easement; the easement could arise only by contract, will, or prescription, none of which was shown. The dissent further argued that the easement of light and view and altius non tollendi were economically obsolete deterrents to progress, and that the Court should not have compelled the tearing down of a new building during wartime when materials were scarce.