[No. 6076. December 29, 1911.

SEVERINA and FLORA CHOCO, plaintiffs and appellants,

vs. ISIDRO SANTAMARIA, defendant and appellant.

1. REALTY; EASEMENTS; LIGHT, AIR, AND VIEW.—

Windows with direct views, or balconies or any similar
openings projecting over the estate of a neighbor, can not
be made if there is not a distance of at least 2 meters
between the wall in which they are built and the said
estate. Neither can side nor oblique views be opened over
said property, unless there is a distance of 60 centimeters.
(Art. 582, Civil Code.)

2. ID.; ID.; ID.—The owner of a wall which is not a party

wall, adjoining another's estate, may make in it windows
or openings to admit light, at the height of the ceiling
joists or immediately under the ceiling, of the dimensions
of 30 centimeters square and, in any case, with an iron
grate embedded in the wall and a wire screen. (Art. 581,
Civil Code.)

APPEAL from a judgment of the Court of First Instance of

Manila. Crossfield, J.
The facts are stated in the opinion of the court.
Manuel Torres, for plaintiffs.
Leodegario Azarraga, for defendant.
MAPA, J.:
The judgment rendered in this case in first instance is in
part as follows:
"From the evidence presented at the trial, I find that the
defendant is in possession of a parcel of land on the corner
of Calles Pescadores and P. Rada, in the district of Tondo,
city of Manila, and that. he has erected a house thereon
flush with the boundary line of the adjacent property; that
the plaintiffs are the owners of the land on both sides of
defendant's house, erected as stated, both on Calle
Pescadores and Calle P. Rada; that the defendant in the
building of his house has made several openings and
windows in the walls of the house on both sides overlooking
the property of the plaintiffs? that at the time the
defendant was building his house, and the windows and
openings were being made, the plaintiffs protested, and
later on and in the year 1905
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VOL. 21, DECEMBER 29, 1911. 133

Choco vs. Santamaria.

made written protest and demand on the defendant, and

the defendant received the written protest and referred it
to his counsel, who, from the evidence, appears to have
suggested an amicable adjustment of the matter, but the
adjustment was not made, and this action was brought.
"It is likewise established that the entrance to the
defendant's house is in Calle Pescadores, and taking it as
the front of his house he has put a large window in its
upper story, on the balcony of said house, marked 1 on
Exhibit A, overlooking Calle P. Rada; and that this window
and its balcony do not face directly toward the house of the
plaintiffs.
"There have also been constructed two windows in the
rear wall of the house of the defendant, in the first story of
the house, which are marked 8 and 9 on Exhibit A, and
these windows are each 50 by 80 centimeters, and are
placed immediately under the ceiling of the first story, and
each of these windows is equally divided into four panes.
"On the right hand side of the house, entering from
Calle Pescadores, there is a window or opening in the wall
of the house in the second story, which is about 25 by 35
centimeters, and is located a little more than half way from
the floor of the ceiling of the second story and this is
subdivided into smaller panes; and on the same side there
are three windows which are marked 2, 3, and 4 on Exhibit
A, located immediately under the ceiling of the first story,
and each of the three is 25 by 25 centimeters.
"There are two other windows on the same side located
immediately under the ceiling, which are marked 5 and 6
on Exhibit A and also on Exhibit C, and one of these
windows is about 35 by 67 centimeters, and the other about
75 by 90 centimeters.
"It also appears that there is wire screening over all
these openings or windows.
"The law provides that the owner of a wall which is not a
party wall, adjoining another's estate, may make in it
windows or openings to admit light at the height of the
ceiling joists, or immediately under the ceiling, thirty centi-

134
134 PHILIPPINE REPORTS ANNOTATED
Choco vs. Santamaria.

meters square, with an iron grate embedded in the wall

and a wire screen.
"In this case the windows are in a wall not a party wall
adjoining plaintiff's estate, and the windows marked 2, 3,
and 4, as appears on Exhibit A, are less than thirty
centimeters square and have a wire screen, but there does
not appear to be the iron grate embedded in the wall.
"The windows marked 5 and 6, as indicated on Exhibit
A, have a wire screen but are more than thirty centimeters
square, and have not the iron grate embedded in the wall.
"The window marked 7 on Exhibit A has a wire screen,
but is more than 30 centimeters square and has not the
iron grate embedded in the wall.
"The windows 8 and 9, as indicated on Exhibit A, have a
wire screen but no iron grate embedded in the wall, and are
of a greater dimension than thirty centimeters square.
"The window marked One on Exhibit A is located in a
balcony which overlooks the street, and, while the premises
of the plaintiff may be seen from it, it is not adjoining their
estate.
"The court finds that the plaintiffs are entitled to a
decree for closing all the windows or openings in the walls
of the defendant's house, as herein before described, which
directly overlook the premises of the plaintiffs, or that in
some other way the provisions of the law be complied with
so that they may remain open.
"All these openings and windows can be made to comply
with the law, with the exception of that marked 7, which is
not immediately under the ceiling (techo).
"Let judgment be entered in favor of the plaintiffs,
Severina and Flora Choco, and against the defendant,
Isidro Santamaria, forever prohibiting the opening of the
window marked No. 7, as herein before stated, which must
be closed, and forever prohibiting the opening of the
windows and openings marked, as herein before stated, 2,
3, 4, 5, 6, 8, and 9, which must be closed or made to
conform to the requirements of law with regard to
dimensions and

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VOL. 21, DECEMBER 29, 1911. 135

Choco vs. Santamaria.
an iron grate embedded in the wall, with the costs of the
action."
The plaintiffs appealed from that judgment and allege in
their appeal in this instance:

1. That the lower court erred by not ordering in his

judgment the final and perpetual closing of the
large window opened in the balcony of the back part
of the appellee's house and marked No. 1 in the
photographic Exhibits A and D, on the ground that
the said window is in the balcony which overlooks
Calle Padre Rada and that, though the appellants'
lot can be seen from this window, it is not
contiguous to the latter's property.
2. That the trial court also erred in ordering in his
judgment that the openings and windows, Nos. 2, 3,
4, 5, 6, 8, and 9, might continue open if they were
fixed so as to comply with the requirements of the
law as regards their dimensions and the placing of
iron grates embedded in the wall.
3. That the lower court also erred in denying the
appellants' petition for a rehearing.

It appears obvious to us, from the evidence, that the

window No. 1, referred to in the first assignment of errors,
is next to the appellants' lot. To judge from the
photographic views, Exhibits A and D, it opens on the
boundary line between the said lot and that of the appellee
and is situated perpendicularly above a part of the wall
that belongs to the appellants. This opinion is corroborated
by the testimony of the defendant's witness who took the
said photographs, in so far as he said that "a part of the
window in question is in front of the plaintiffs' property,
and a person approaching the window may clearly see the
said lot." And certainly if it is in front of this lot, it is
unquestionable that it directly overlooks the same; but
even though it did not and only a side or oblique view of the
lot could be obtained from it, it could not be kept open,
since between it and the plaintiffs' property there does not
intervene the distance required by law—that of two meters
in

136

136 PHILIPPINE REPORTS ANNOTATED

Choco vs. Santamaria.
the first case, and 60 centimeters in the second. In reality,
there is no distance at all between the said window and the
plaintiffs' lot, because, as we have said, this window is
perpendicular to the boundary line of the said lot;
therefore, its opening is a manifest violation of the
provisions of article 582 of the Civil Code which reads as
follows:
"Windows with direct views, or balconies or any similar
openings projecting over the estate of the neighbor, can not
be made if there is not a distance of, at least, 2 meters
between the wall in which they are built and said estate.
"Neither can side nor oblique views be opened over said
property, unless there is a distance of 60 centimeters."
Because of the lack of the distance required by law, the
window in question must be closed, and consequently the
judgment appealed from should be modified in this sense,
as regards this window.
With respect to the second assignment of error, the
question raised by the appellants concerns the proper
interpretation of article 581 of the Civil Code which
prescribes as follows:
"The owner of a wall which is not a party-wall, adjoining
another's estate, may make in it windows or openings to
admit light, at the height of the ceiling joists or
immediately under the ceiling, of the dimensions of 30
centimeters square and, in any case, with an iron grate
embedded in the wall and a wire screen."
The windows mentioned. in this part of the appeal are
those indicated by Nos. 2, 3, 4, 5, 6, 8, and 9, in the
defendant's Exhibit A. They are all situated immediately
under the ceiling of the first floor and are provided with
wire screens; some of them measure more and others less
than 30 centimeters square and none of them have iron
grates embedded in the wall. Owing to this last
circumstance, none of them fully comply with the
conditions required by law; moreover, those numbered 5, 6,
8, and 9, have the additional defect of being greater than 30
centimeters square. The trial judge therefore ordered, in
the judg-

137

VOL. .21, DECEMBER 29, 1911. 137

Choco vs. Santamaria.

ment, that all the aforementioned windows be closed or

that they be made to conform to the law with respect to
their dimensions and the placing of iron grates embedded
in the wall. The appellants maintain that these windows
should have been ordered closed absolutely and finally,
and, consequently, that the option allowed the defendant to
keep them open, provided that he brought them within the
terms of the law, is contrary to the same and, therefore,
illegal.
It is alleged as a ground for such averment that none of
the windows referred to are at the height of the ceiling
joists, which is the first condition required by law.
"We understand by ceiling joists—say the appellants—in
a building composed of any given number of stories, the
long pieces to which are nailed the boards that form the
ceiling of the last story of the building, counting the stories
from below; and this interpretation which we give to the
words ceiling joists must be that most in harmony with the
spirit of article 581 of the code, the subject of our
examination, since immediately after them in the same
article, in explanation, are found the words or immediately
under 'los techos,' in order to indicate, without the least
doubt, the sole place or height where openings or windows
may be made in conformity with the law. It is needless to
say that a building, though composed of several stories, can
have but one techo. * * *"
This last assertion is incorrect. By techo is understood
that part of a construction which covers the rooms under it
and certainly forms one of the essential parts of every
story. A story is composed of earth, pavement and ceiling,
the latter, that is, the ceiling, being that part of the story
that is visible to the observer situated below in the room
covered by it. (Hispano-American Encyclopedic Dictionary,
by Montaner and Simon.) Consequently, every story has a
ceiling, and not, as the appellants maintain, the upper one
alone.
Nor is their definition exact of the word joists, as it is
employed in article 581 of the Code. According to the dic-
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138 PHILIPPINE REPORTS ANNOTATED

Choco vs. Santamaria.

tionary of the Spanish Academy, these are, in architecture,

understood to be a kind of beam laid horizontally and
serving in buildings to support others or for bracing and
connecting the parts of the structure. Mucius Scaevola says
in his Civil Code, volume 10, page 448:
"The horizontal timbers that are placed upon the tops of
the uprights, that is, what are commonly called beams,
intended to serve for connection and main support of the
timbers of the different floors that separate the stories of
the building, are called joists."
According to these definitions each floor necessarily has
joists, that is, beams, since, in the last analysis they are
what support and secure the structure of the story
immediately above; therefore it is not true that there may
be joists only in the top story, as the appellants claim by
saying that they understand to be such the long timbers to
which are fastened the boards of the ceiling at the top story
of the building. On the contrary, carefully considered, it is
precisely the top story that does not need joists, since it
does not have to support any other higher portion of the
building. It has only to support the weight of the roof,
which is undoubtedly much less than that of a whole story.
So that, according to Mucius Scaevola (work cited, vol. 10,
p. 487), it can not be said that the top story has joists. And
because it certainly does not have them, is the reason why
the code in said article 581 employs the phrase or
immediately under "los techos" in referring to the top story.
The author's words in expounding this theory in his
commentary on article 581 of the Civil Code are as follows:
"We said elsewere that these (the joists) were the
horizontal timbers that rest upon the tops of the uprights;
they form, then, the upper limit of the different stories of a
house; and therefore, in referring to the top story, which
can not be said to have joists, article 581 makes use of the
phrase or immediately under 'los techos.' "
This does not mean that the italicized phrase refers
solely and exclusively to the top story, since the lower
139

VOL. 21, DECEMBER 29, 1911. 139

Choco vs. Santamaria.

stories also have techos, as above set forth. In our opinion

what the author cited means is that in speaking of the top
story, which has no joists, the words of article 581 of the
code, at the height of the ceiling joists, fail to apply, the
phrase or immediately under "los techos" alone being
thereto applicable, in distinction from the lower stories,
with regard to which both phrases are applicable as they
have at the same time joists and techo. In referring to the
lower stories either phrase may, in connection with the
other, determine the place, which surely can not be more
than one, where it is permissible to open the windows
called regulation windows, whenever in them the joists are
actually joined to or placed next to the techo which forms
the top of each of said stories. Both phrases therefore
express the same idea with reference to the lower stories.
Aside from what has been said here, the object of the
law in authorizing the opening of the windows in question
in all the stories of a building, without any exception, is
clear. Their purpose is, as article 581 itself says, to furnish
light to the rooms, and it is evident at a glance that the
rooms of the lower stories have as much need for light as
those of the top story. No good reason exists for having one
story in better condition than another, whichever it may be,
in connection with this provision of law.
The defendant is ordered to close finally and forever the
window marked No. 1 in Exhibit A, the judgment appealed
from in so far as it refers to said window being thus
modified, but affirmed in all other respects; without special
finding as to costs in this instance.

Arellano, C. J., Johnson and Carson, JJ., concur.

MORELAND, J., dissenting:

I cannot conform to a decision which, in the twentieth

century and in a civilized country, makes it an offense for a
person to put windows in his own house.
The law, if any (and I do not believe that the law
invoked covers the case), upon which the decision is based,
together with the reasons for its existence, disappeared
140

140 PHILIPPINE REPORTS ANNOTATED

United States vs. Flores.

with the American occupation, and with the advent of

American institutions, Constitution and laws.
Moreover, it might well be that such a law "Would
seriously conflict with those laws, rules and regulations
which are necessary to assure and preserve the public
health.
Judgment modified.

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