FACTS:
House No. 65 Calle Rosario, the property of the
plaintiff’s wife, has a certain window through which it receives light and air,
said windows opening on the adjacent house, No. 63 of the same street. These
windows have been in existence since the year 1843. The defendant, the tenant
of the said house No. 63, has commenced certain work with the view to raising
the roof of the house in such a manner that one-half of the windows in said
house No. 65 has been covered, thus depriving the building of a large part of
the air and light formerly received through the window.
The contention of the plaintiff is that by the
constant and uninterrupted use of the windows during a period of fifty-nine
years he acquired by 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, or from the
time that said windows were opened with the knowledge of the owner of the house
No. 63, and without opposition on this part.
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.
ISSUE:
(1) Whether or not the easement of light is a
negative easement; and (2) whether or not the plaintiffs have acquired right to
such easement by prescription.
DECISION:
The easement of light in this case is a negative
easement since the window from which the light and air were received was opened
on the plaintiff’s own property as an exercise of dominion, as such, it does
not establish in itself any easement. The mere toleration of such an act does
not imply on the part of the abutting owner a waiver of his right to freely
build upon his land as high as he may see fit. It being a negative easement, it
cannot be acquired by prescription under article 538 of the Civil Code, except
by counting the time of possession from the date on which the owner of the
dominant estate may, by a formal act have prohibited the owner of the servient
estate from doing something which it would be lawful from him to do were it not
for the easement. Since no formal prohibition has been executed by the
plaintiff in this case, it has not acquired right over the easement of light by
prescription since the prescriptive
acquisition of the title thereto must be counted, not from the time of the
opening of the windows, but from the time at which the owner thereof has
executed some act of opposition tending to deprive the owner of the servient
tenement of his right to build upon it to such height as he might see fit in
the legitimate use of his rights of ownership.
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