
    FRANCISCO SEMIDEY, Complainant, v. CENTRAL AGUIRRE COMPANY ET AL., Dfts.
    San Juan,
    Equity,
    No. 874.
    As TO MODIFICATION OF INJUNCTION.
    Order of Court — Previous Term.
    1. While a court is bound by its decree at a previous term, this-. does not prevent it from modifying an injunction -pendente lite. This is in its nature provisional.
    Preliminary Injunction — Vacancy on the Bench.
    2. A preliminary injunction issued in view of the intended vacancy on the bench may be modified after the vacancy is filled.
    Equity — Trial of a Case Piecemeal.
    3. A court of equity will not try a case piecemeal and render a final judgment against one defendant, leaving the case open as to the other.
    Law of Waters — Porto Eico.
    4. The first law of waters extended over Porto Eico was that of Spain dated August 3, 1866. This was subsequently repealed and replaced by a new law of June 13, 1879, which was not extended over Porto Eico until Eoyal Order of April 5, 1886. This is still in force as amended by Acts of Legislative Assembly of 1903 and 1905. Water rights pass with the land to which they are attached without special mention or registry.
    Irrigation Eight — Separation from Land.
    5. While on a preliminary injunction the question of separation of irrigation rights from the land complained of will not be finally passed on, the court will protect the parties by injunction without waiting for action of the public authorities, and an injunction will be granted, although in the middle of the case, upon the giving of a satisfactory bond.
    Opinion filed July 15, 1914.
    
      Mr. Perry Allen for complainant.
    
      Mr. 0. Hartzell for defendant Aguirre Company, and Mr. Jorge Dominguez for defendant Gonzalez.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbis cause now comes up upon a motion to modify tbe injunction issued by tbis court December 10, 1912, designed to preserve tbe status quo. Tbe argument is that no one asked for sucli an injunction, and that, instead of aiding tbe complainant, wbo made tbe motion, it restrains bim as mucb as it does tbe defendants.

1. Defendant Gonzalez resists tbe application on tbe ground that, several terms having elapsed, it is now too late for tbe court to modify its previous order. A court of equity, however, is not so limited in its powers. It is, of course, bound by its own decrees made at a former term, but tbe injunction in question only purports to be an injunction pendente lite. One part of tbe order is expressly said to be until further order of tbe court, and, from tbe nature of tbe relief granted, tbe whole order must be construed as of that nature. Tbe court, therefore, has power to modify tbe injunction if it appears proper.

2. Tbe complainant asks that tbe injunction be made to read so as to compel defendant Gonzalez to rebuild a wall or obstruction which is alleged to have been removed by bim after it bad been placed by tbe defendant Central Aguirre Company so as to prevent tbe water from being diverted from its proper use under tbe original lease and franchise. It may have been quite proper to word tbe injunction of December 10, 1912, as it was. written, inasmuch as tbe judge of tbis court bad resigned, and it appeared proper to have tbe case remain as it was, without any advantage to either side, until tbe bench should be filled. That situation no longer existing, tbe court will consider tbe matter so far as relates to a preliminary remedy.

3. A preliminary injunction is ordinarily dissolved upon tbe coming in of an answer, and tbe parties are put to their proof respectively. Defendant Central Aguirre Company stands neutral, and does not oppose tbe granting of tbe injunction in tbe form prayed, and in fact on a previous occasion opposed tbe injunction in tbe form in wbicb it was granted. Tbe answer of defendant Gonzalez admits tbe main facts of tbe application, and be now relies mainly upon tbe point that tbe balance of inconvenience in granting this injunction would fall upon him, and that therefore tbe court should not make any change. Tbe court is unwilling to try a case piecemeal, and in effect to render a final judgment against one defendant, leaving tbe questions in tbe case open as to tbe other. Tbe application is not resisted so much upon technical grounds as upon tbe facts, both complainant and Gonzalez having introduced witnesses at tbe bearing before tbe judge.

Tbe facts of tbe case seem to be that complainant leased out-their estate Santa Teresa with its water right now in question, and that this property right came down by mesne conveyances to tbe Central Aguirre Company. That this defendant separated the water right from the leasehold of the land, retaining the land and leasing tbe water right to Gonzalez, who has used it to irrigate a different piece of property. This is claimed to be contrary to tbe irrigation laws wbicb have their origin back in Spanish times.

4. Tbe first law of waters was enacted and extended over this. Island on August 3, 1866.

This law was subsequently repealed and replaced by tbe new law enacted in Spain on June 13, 1879, extended over Porto Rico by tbe Royal Order of April 5, 1886, and published in Porto Rico on April 28, 1886. This last law is still in force, substantially amended by Acts of tbe Legislative Assembly of Porto Rico of March 12, 1903, and March 9, 1905. (Revised-. Stat. etc. P. R. p. 457.) The law of 1866 (§ 208) provided for a forfeiture of the water right if used for other purposes than the concession. Water rights pass with the land to which they are attached, without special mention or separate registry.

The present insular government has undertaken an expensive irrigation scheme, and in connection with this is investigating ■old irrigation rights, with the view of embracing all within one plan as far as possible. It aims to give each claimant his -equivalent in the new arrangement, or pay for it by condemnation. It is therefore of importance to all irrigation claimants to have their titles in such shape as to avoid the question of forfeiture.

5. The complainant contends that it is illegal to separate the irrigation right from the land to which it is appurtenant. It is not necessary to decide this point finally, but reference may be had to the law as to twenty years and as to a year and a day (Law of Waters, §§ 11, 14). There could be no forfeiture by the Spanish government until the concessionaire had been heard, and even then he would have a right of review in court. Act of God or other force may or would prevent forfeiture. There may be a question under the present legislation whether the forfeiture should be by quo warranto or by the executive •council, but in a proper case there will still be a forfeiture finally by some proceeding. It would seem at all events that it would not be wise to leave this question open until there is an -official inquisition into the subject of the rights involved. It would appear that an injunction should be granted substantially as prayed for.

Although made in the middle of the case, the injunction applied for is really only provisional, one -pendente lite, to protect rights wbicb -under the bill have been claimed and enforced for a long time. The court will be unable to give final relief against one defendant, and not against another. It may possibly be therefore that this injunction may be changed at the final hearing. ' For that reason the rights of the defendant Gonzalez should be protected in the meantime by bond or otherwise. No showing is made as to the money value of the possible injury to Gonzalez, but it would seem from the facts of the case that a bond of $10,000 should be required.

A decree will be entered, therefore, that upon complainant’s making a bond of $10,000 to protect defendant Gonzalez from damages, if any, the injunction ordered December 10, 1912, will be modified and rewritten as an injunction directing defendant Gonzalez to close the canal within sixty days thereafter, and, in the event of his not doing so, that the marshal of this court will close the same, as prayed for.  