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;1 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 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 centimeters 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.  1, 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 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 Iatter'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 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 judgment,  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 dictionary 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 elsewhere 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 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 "hs 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.

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DISSENTING



MORELAND, J.,


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 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.