CORTES vs. YU-TIBO- Negative Easement
A Notarial prohibition is required to start the running of prescription in a negative easement.
Easement disputed here is the easement of light and view. Plaintiff’s wife has certain windows on her property which open on the adjacent lot. It has been established that the plaintiffs hasn’t done any formal act prohibiting the owner of the house of the adjacent house prohibiting them to make any improvements. Plaintiff claims that period of prescription started when those windows were made and acknowledge by the owner of the adjacent lot. Defendant however claims that there should be a formal act prohibiting them from doing a certain act to trigger the prescriptive period.
Whether or not plaintiffs have acquired the easement through prescription?
The Court clarified that mere act of opening one own’s window is an act of dominion not of easement. The easement here is the (possible) prohibition of creating any improvements on the property of the defendants (negative easement) that may impede or limit the use of the window. Thus, plaintiff is totally wrong in saying that prescription for the easement starts to kick in when the window was made and acknowledge by the adjacent owner. In fact, what is needed in this situation is a formal act through a notarial prohibition so that prescriptive period will start. The fact that the defendant has not covered the windows of the apellant/ plaintiff does not necessarily imply the recognition of the acquisitive prescription of the alleged easement as this might just be a result of a mere tolerance on the part of the defendant.
Plaintiffs asked for a rehearing but was again denied! Plaintiff mentions about their windows and watersheds to be apparent easements, or just projitiendi and jus spillitiendi. The court says that the plaintiffs are obviously confused between the right exercised by owners and the rights provided in easements.