[ G.R. No. L-14116, June 30, 1960 ]
[WITH RESOLUTION OF JANUARY 20, 1961]
LAUREANA A. CID, PETITIONER, VS. IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER, FERNANDO P. JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN P. JAVIER, AND LEONOR CRISOLOGO, RESPONDENTS.
D E C I S I O N
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. 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 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.
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.
 Cortes vs. Yu-Tibo, 2 Phil., 24; Fabie vs. Lichauco, 11 Phil., 14.
 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. In relation to Section 11 of the Cadastral Law (Act No. 2259).