
    Antonio Trilla-López, Plaintiff and Appellee, v. Ramón Caballero, Defendant and Appellant.
    No. 3523.
    Argued March 18, 1925.
    Decided July 8, 1925.
    Injunction — Servitude—Light—Personal Obligation. — A' stipulation in a deed of sale that the vendee shall allow a window to remain open as long as the vendor may desire does not constitute a servitude of light, hut is a personal obligation in favor of the vendor which he can not transfer to a third person.
    District Court of Humacao, Pablo Berga, J. Judgment for tbe petitioner in an injunction proceeding.
    
      Reversed.
    
    
      Antonio L. López and Julio Reguero González for tbe appellant. Y. M. Fernández and Luis Pereyó Quimones, for tbe appellee.
   Mr. Justice Aldrey

delivered tlie opinion of tbe court.

Fernando Guarch Bios was tbe owner of two bouses built on adjoining lots in Caguas, one of them having a garage which partly extended to the lot occupied by the other house. In May of 1920 Guarch sold to Bamón Caballero the house and the lot partly occupied by the garage of the adjoining house and the following was included in the deed: “It is agreed that this sale does not include the garage or the part of the lot occupied by it and that grantee Caballero has no right to order the closing of the window in the back part of the said garage, which shall remain open as long as Guarch Bios may desire.” Caballero’s wife was not, a party to this deed.

A few months thereafter Guarch sold the other house to Francisco Méndez, who in 1921 sold it to Antonio Trilla López, the deed of sale to Trilla containing the stipulation relative to the garage under which Guarch had sold the property to Caballero.

Becently Bamón Caballero nailed up the window of the garage of Trilla’s property, thereby preventing him from opening it. Thereupon Trilla brought injunction proceedings in the District Court of Humacao praying that Caballero be ordered to leave the said window in such a condition that the petitioner might open it whenever he desired, and judgment having been rendered as prayed for, Caballero took the present appeal.

In tbe petition for tbe injunction it is alleged that the stipulation quoted from the deed by -which Caballero purchased the property from G-uarch Created a servitude (without saying of what class) which in his brief in this court the petitioner classifies as a servitude of light and the district court considered as a reservation of the right to have an open window. Therefore, the first question to decide is the kind of obligation imposed upon Caballero by that paragraph when he purchased the house from Guarch, thereby considering the first ground of this appeal to the effect that the lower court erred in considering the title claimed by the plaintiff as a valid one of servitude of lights and views.

The obligation contracted by the appellant in the said stipulation not to order the closing of the window of the garage and allow it to remain open as long as Guarch desired does not constitute a servitude of light or view, for although the window of the garage may give light and view, the right has not been recognized in favor of the adjoining tenement, but in favor of Guarch personally for such time as he might desire, and as servitudes of this kind are real, they must be created in favor of another tenement and not in favor of a person. Furthermore, praedial servitudes as of light and view* are encumbrances of a real nature that affect the servient tenement and in the creation of them the consent of the wife is necessary when .the property belongs to the community, as in the present case, for they create real rights against the property, and Caballero’s wife was not a party to the deed in order to consent to the imposition of that real obligation. In fact what the language of the said stipulation shows is that Ramón Caballero recognized in favor of Guarch the right to have the open window as long as he desired, thus' accepting a personal obligation in favor of his vendor, and such being the nature of the right, Guarch could not and did not transmit it to Francisco Méndez, nor Méndez to Antonio1 Trilla, the purchasers of' the second house.

In view of the conclusion reached Antonio Trilla has no right of action against Caballero to compel him to allow the garage window to remain open, and the judgment appealed from is reversed and substituted by another dismissing the petition without costs.  